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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): October 17, 2000
MGIC INVESTMENT CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 1-10816 39-1486475
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
250 East Kilbourn Avenue, Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 414-347-6480
Not Applicable
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On October 17, 2000, MGIC Investment Corporation (the "Company") agreed to
sell $200,000,000 aggregate principal amount of its 7-1/2% Senior Notes due 2005
(the "Senior Notes") in a public offering through Banc of America Securities
LLC, Lehman Brothers Inc., Banc One Capital Markets, Inc., Dain Rauscher
Wessels, a division of Dain Rauscher Incorporated, and Robert W. Baird & Co.
Incorporated. The closing for the sale of the Senior Notes is scheduled for
October 20, 2000. The Senior Notes are registered on a Registration Statement on
Form S-3 (Registration No. 333-39890) as filed with the Securities and Exchange
Commission. Final versions of the Underwriting Agreement, among the Company and
the underwriters named therein, the Indenture, between the Company and Bank One
Trust Company, National Association, as Trustee, and the Officer's Certificate
creating the Senior Notes are filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MGIC INVESTMENT CORPORATION
Date: October 18, 2000 /s/ Patrick Sinks
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Patrick Sinks, Senior Vice President
and Chief Accounting Officer
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
1 Underwriting Agreement, dated as of October 17, 2000, by and
among MGIC Investment Corporation and the underwriters,
including Banc of America Securities LLC, Lehman Brothers Inc.,
Banc One Capital Markets, Inc., Dain Rauscher Wessels, a
division of Dain Rauscher Incorporated, and Robert Baird & Co.
Incorporated.
4.1 Indenture, dated as of October 15, 2000, between MGIC Investment
Corporation and Bank One Trust Company, National Association, as
Trustee.
4.2 Officer's Certificate, dated as of October 17, 2000, executed
and delivered in connection with the issuance and sale of MGIC
Investment Corporation's 7-1/2% Senior Notes due 2005.
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EXHIBIT 1
$200,000,000
MGIC INVESTMENT CORPORATION
7 1/2% Senior Notes due 2005
Underwriting Agreement
October 17, 2000
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
MGIC INVESTMENT CORPORATION, a Wisconsin corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under an Indenture, dated as
of October 15, 2000 (the "Indenture"), between the Company and Bank One Trust
Company, National Association, as trustee thereunder (the "Trustee"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-39890) under the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), relating to certain
debt securities (the "Shelf Securities") and the offering thereof from time to
time in accordance with Rule 415 of Regulation C under the Securities Act by the
Company. Such registration statement and each post-effective amendment thereto,
if applicable, has been declared effective by the Commission. Such registration
statement, as so amended, if applicable, to the date of this Agreement
(including the exhibits and schedules thereto), is hereinafter referred to as
the "Registration Statement"; provided that in the event any post-effective
amendment to such registration statement or any Rule 462(b) Registration
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Statement becomes effective prior to the Closing Date, the term "Registration
Statement" shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. The prospectus covering
the Shelf Securities (the "Basic Prospectus"), as supplemented by the prospectus
supplement specifically relating to the Securities, in the forms first used to
confirm sales of the Securities, are collectively hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement, the
Basic Prospectus, any preliminary form of prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 of
Regulation C under the Securities Act or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act"), on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations, warranties and agreements of the Company herein contained, but
subject to the conditions hereinafter stated, agrees to purchase, severally and
not jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to make
a public offering of their respective portions of the Securities in conformity
with the Securities Act, any applicable blue sky laws and all other rules and
regulations applicable to them in connection therewith and (ii) initially to
offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its order
by wire transfer of same-day funds to an account designated by the Company or,
if specifically requested by the Company, by certified or official bank check or
checks payable to the Company in federal or other same-day funds on the date and
at the time and place set forth in Schedule I hereto (or at such other time and
place on the same or such other date, not later than the tenth Business Day (as
hereinafter defined) thereafter, as you and the Company may agree in writing).
Such payment will be made upon delivery to, or to you for the respective
accounts of, such Underwriters of the Securities through the facilities of The
Depository Trust Company or, if
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specifically requested by the Representatives, in certificated form registered
in such names and in such denominations as you shall request not less than one
full Business Day prior to the date of delivery, or with any transfer taxes
payable in connection with transfer to the Underwriters duly paid by the
Company. As used herein, the term "Business Day" means any day other than a day
on which banks are authorized or required to be closed in the City of New York
or Milwaukee, Wisconsin. The time and date of such payment and delivery with
respect to the Securities are collectively hereinafter referred to as the
"Closing Date." The certificates for the Securities will be made available for
inspection and packaging by you by 1:00 P.M. on the Business Day prior to the
Closing Date at such place in the City of New York as you and the Company shall
agree.
4. The Company represents and warrants to each Underwriter as of the date
hereof and as of the Closing Date (each, a "Representation Date") that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, when they become effective
or are filed with the Commission, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"); as of the applicable effective date and each Representation
Date, the Registration Statement and any amendment thereto did not and will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and as of the applicable filing date and each Representation Date,
the Prospectus and any amendment or supplement thereto did not and will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing representations and warranties shall not apply to (i) that
part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee, and (ii)
statements or omissions in the Registration Statement or the Prospectus made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for inclusion therein.
(b) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, complied in all material respects with the
requirements of the Exchange Act, and none of such documents, when they were so
filed, included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will comply in all material respects
with the requirements of the
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Exchange Act, as applicable, and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company, except as
rights to indemnity and contribution hereunder may be limited by applicable law.
(d) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and constitutes
a valid and binding agreement of the Company, enforceable in accordance with its
terms (except as the enforceability thereof may be limited by bankruptcy,
insolvency and other laws affecting the enforceability of creditors' rights
generally and general principles of equity and an implied covenant of good faith
and fair dealing), the Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will have been duly executed and delivered by the Company and
will constitute valid and binding obligations of the Company, enforceable in
accordance with their terms and the terms of the Indenture (except as the
enforceability thereof may be limited by bankruptcy, insolvency and other laws
affecting the enforceability of creditors' rights generally and general
principles of equity and an implied covenant of good faith and fair dealing),
and holders of the Securities will be entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform in all material respects
to the descriptions thereof in the Prospectus.
(e) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Wisconsin, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing (or the
local equivalent) under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to so qualify or to be in good standing would not
result in a material adverse effect on the business, financial position or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business (a "Material Adverse
Effect").
(f) Each of the Company's subsidiaries that constitutes a "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X) as of the
last day of the Company's most recent fiscal quarter (each a "Subsidiary" and
collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or organization, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation or limited liability company for the transaction of business
and is in good standing (or the local equivalent) under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to
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require such qualification, except where the failure to so qualify or to be in
good standing would not result in a Material Adverse Effect.
(g) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under the
"Capitalization" section of the Prospectus, and such shares of capital stock
have been duly authorized and validly issued by the Company and are fully paid
and non-assessable (except for certain statutory liabilities that may be imposed
by Section 180.0622(2)(b) of the Wisconsin Business Corporation Law (the "WBCL")
for unpaid employee wages), and none of such shares of capital stock was issued
in violation of pre-emptive or other similar rights of any security holder of
the Company; all of the outstanding shares of capital stock or limited liability
company interests of each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable (except, in the case of
Subsidiaries that are Wisconsin corporations, for certain statutory liabilities
that may be imposed by Section 180.0622(2)(b) of the WBCL for unpaid employee
wages), and, except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(h) The financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus and the Registration Statement present fairly in all material
respects the consolidated financial condition, results of operations and cash
flows of the Company and its consolidated subsidiaries as of the dates and for
the periods indicated, comply as to form with the applicable accounting
requirements of the Securities Act or the Exchange Act, as applicable, and have
been prepared in conformance with United States generally accepted accounting
principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein).
(i) PricewaterhouseCoopers LLP, who have certified the financial statements
included or incorporated by reference in the Prospectus, are independent public
accountants as required by the Securities Act.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, financial
position or results of operations of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business (a "Material
Adverse Change") and (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise.
(k) The execution, delivery and performance of this Agreement, the
Indenture and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the
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Registration Statement and the Prospectus and the consummation of the
transactions contemplated herein and in the Registration Statement and the
Prospectus and compliance by the Company with its obligations hereunder and
thereunder do not and will not conflict with or result in a breach of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the Company
or any of its subsidiaries pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound or to which any of the assets, properties or operations of
the Company or any of its subsidiaries is subject (collectively, the "Agreements
and Instruments") the result of which would have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the charter or
bylaws of the Company or any of its Subsidiaries or any applicable law or
statute or any order, rule, regulation or judgment of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their assets, properties or operations, except for any such violations
that would not, individually or in the aggregate, result in a Material Adverse
Effect.
(l) There is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body now pending, or to the
knowledge of the Company threatened, against or affecting the Company or any of
its subsidiaries which is required to be disclosed in the Registration Statement
and the Prospectus (other than as stated therein, including documents
incorporated by reference), or which might reasonably be expected to result in a
Material Adverse Effect (other than as stated therein, including the documents
incorporated by reference), or have a material adverse effect on the
consummation of the transactions contemplated under the Prospectus, this
Agreement or the Indenture or the performance by the Company of its obligations
hereunder and thereunder; and the aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of
which any of their respective assets, properties or operations is the subject
which is not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, is not
reasonably expected to result in a Material Adverse Effect.
(m) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the due authorization, execution and delivery by the Company of this
Agreement or for the performance by the Company of the transactions contemplated
under the Prospectus, this Agreement or the Indenture, except such as have
already been made, obtained or rendered, as applicable, and such as may be
required under state securities laws.
(n) Each insurance company subsidiary of the Company (collectively, the
"Insurance Subsidiaries") is duly licensed as an insurance company in its
jurisdiction of organization and is duly licensed or authorized as an insurer in
each jurisdiction outside its jurisdiction of organization where it is required
to be so licensed or authorized to conduct its business as described in the
Registration Statement and the Prospectuses, except where the failure to be so
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licensed or authorized, individually or in the aggregate, would not result in a
Material Adverse Effect.
(o) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
5. The Company covenants and agrees with each Underwriter as follows:
(a) To file the Prospectus in a form approved by you (such approval not to
be unreasonably withheld or delayed) pursuant to Rule 424 of Regulation C under
the Securities Act not later than the Commission's close of business on the
second Business Day following the date of determination of the offering price of
the Securities.
(b) To deliver to each Representative and counsel for the Underwriters, at
the expense of the Company, a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case including exhibits
and documents incorporated by reference therein and, during the period mentioned
in subsection (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request.
(c) For so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities, to furnish to you a copy of any
proposed amendment or supplement to the Registration Statement or the
Prospectus, for your review, and not to file any such proposed amendment or
supplement to which you reasonably and timely object in writing; provided,
however, that the provisions of this subsection (c) shall not apply to any of
the Company's periodic filings under the Exchange Act described in subsection
(d), copies of which filings in substantially final form the Company has
delivered to you in advance of their transmission to the Commission for filing.
(d) To file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period, to advise you promptly, and to
confirm such advice in writing, (i) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424 of Regulation C under the Securities Act or when any Rule 462(b)
Registration Statement shall have been filed with the
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Commission, (ii) when any amendment to the Registration Statement shall have
become effective, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for any additional information, insofar as such amendment or supplement relates
to or covers the Company generally or the Securities specifically, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, and (v) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of any such
stop order or notification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(e) If, at any time when a prospectus is required to be delivered under the
Securities Act, any event shall occur or condition shall exist as a result of
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, promptly to prepare and furnish,
subject to subsection (c) above, at the expense of the Company (unless such
event shall occur more than nine months after the date of the Prospectus, in
which case the cost of preparing and furnishing such amendments or supplements
shall be borne by the Underwriter or Underwriters requesting the same), to the
Underwriters and to the dealers (whose names and addresses you will furnish to
the Company) to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law.
(f) To make generally available to its security holders as soon as
practicable an earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
(g) From and including the date hereof to and including the Business Day
following the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of, or guaranteed by, the Company which are
substantially similar to the Securities without your prior written consent.
(h) To arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National Association
of Securities Dealers, Inc., in connection with its review of the offering;
provided that in no event shall the Company be obligated to qualify to do
business in
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any jurisdiction in which it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction in which it is not
now so subject.
(i) To pay, except as otherwise provided in paragraph (e) above, all costs
and expenses incident to the performance of its obligations hereunder,
including, without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution, authentication
and delivery of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus (including
in each case all exhibits, amendments and supplements thereto), (iii) incident
to the printing and delivery to you and the other Underwriters of reasonable
quantities of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iv) incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the laws of
such jurisdictions as the Underwriters may designate (including the fees and
disbursements of counsel for the Underwriters in an amount not to exceed
$5,000), (v) in connection with any listing of the Securities on any stock
exchange or quotation system, (vi) related to any required filing with the
National Association of Securities Dealers, Inc., (vii) in connection with the
duplication and delivery of this Agreement, the Indenture, the Preliminary and
Final Blue Sky Memoranda and any Legal Investment Survey and (viii) payable to
rating agencies in connection with the rating of the Securities; provided,
however, that, except as provided in this Section 5(i) and in Sections 7 and 10
hereof, the Underwriters shall pay their own costs and expenses, including the
fees and expenses of their counsel, any transfer taxes on the Securities which
they may sell and the expenses of advertising any offering of the Securities
made by the Underwriters.
(j) To not take, directly or indirectly, any action designed to or which
has constituted or which might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) The representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date as if made on and as of the
Closing Date, and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.
(b) The Prospectus shall have been filed with the Commission pursuant to
Rule 424 of Regulation C under the Securities Act within the applicable time
period prescribed for such filing by the rules and regulations under the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose
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shall be pending before or threatened by the Commission; and all reasonable
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction.
(c) From and including the date of this Agreement to and including the
Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
probable change that does not indicate an improvement in the rating accorded any
securities of, or guaranteed by, the Company by Moody's Investors Service, Inc.
or Standard & Poor's Ratings Services.
(d) Since the respective dates as of which information is given in the
Prospectus there shall not have been any Material Adverse Change, otherwise than
as set forth or contemplated in the Prospectus, the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus.
(e) The Representatives shall have received on and as of the Closing Date a
certificate of the Chief Financial Officer or the Treasurer of the Company,
acting in their corporate capacities, to the effect set forth in subsections (a)
through (c) of this Section 6 and to the further effect that there has not
occurred any Material Adverse Change, other than as set forth or contemplated in
the Prospectus.
(f) Foley & Lardner, counsel for the Company, shall have furnished to you
their written opinion (other than as to subparagraphs (vii) and (viii) insofar
as such subparagraphs relate to insurance law matters) and the General Counsel
or Associate General Counsel of the Company, shall have furnished to you his
written opinion (as to subparagraphs (vii) and (viii) insofar as such
subparagraphs relate to insurance law matters), each dated the Closing Date, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company is validly existing as a corporation under the laws of
the State of Wisconsin, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing (or the local equivalent) under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure to so qualify or to be in good standing would not result in a
Material Adverse Effect.
(ii) Each Subsidiary of the Company is validly existing as a
corporation or limited liability company under the laws of the jurisdiction
of incorporation or organization, with corporate power and authority to own
its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation or limited liability
company for the transaction of business and is in good standing (or the
local equivalent) under the laws of each other jurisdiction in which it
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owns or leases properties or conducts any business so as to require such
qualification, except where the failure to so qualify or to be in good
standing would not result in a Material Adverse Effect.
(iii) All the outstanding shares of capital stock of each Subsidiary
have been duly authorized and validly issued and are fully paid and
non-assessable (except, in the case of Subsidiaries that are Wisconsin
corporations, for certain statutory liabilities that may be imposed by
Section 180.0622(2)(b) of the WBCL for unpaid employee wages), and, except
as otherwise set forth in the Prospectus, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company.
(v) The Securities have been duly authorized by the Company and,
assuming that the Securities have been duly authenticated by the Trustee in
the manner described in its certificate delivered to you today and payment
of the consideration for the Securities as specified in the Underwriting
Agreement has been made, the Securities have been duly executed, issued and
delivered by the Company and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms and the terms of the Indenture, except (A) as the enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (B) as enforcement thereof is subject to
general equity principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing; and holders
of the Securities will be entitled to the benefits provided by the
Indenture.
(vi) The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except (A) as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, (B) as
enforcement thereof is subject to general equity principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Indenture has been duly qualified
under the Trust Indenture Act.
(vii) The issue and sale of the Securities and the performance by the
Company of its obligations under the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
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Agreements and Instruments known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any such
subsidiary is bound or to which any of the assets, properties or operations
of the Company or any such subsidiary is subject, other than in each case
such breaches or defaults which, individually or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the charter or bylaws of the Company or any
of its Subsidiaries or any applicable law or statute or any order, rule,
regulation or judgment known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any such subsidiary
or any of their assets, properties or operations.
(viii) No consent, approval, authorization, order, registration or
qualification of or filing with any court or governmental agency or body is
required for the issue and sale of the Securities or the consummation of
the other transactions contemplated by the Prospectus, this Agreement or
the Indenture, except such as have been already made, obtained or rendered,
as applicable, and such as may be required under state securities laws.
(ix) The statements in (A) the Prospectus under "Description of Debt
Securities" and "Description of Notes", (B) Item 5 of the Company's Current
Report on Form 8-K, dated May 19, 2000, incorporated by reference into the
Prospectus and (C) the Registration Statement in Item 15, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present in all material respects
the matters, documents or proceedings summarized therein; and the
Securities and the Indenture conform as to legal matters in all material
respects to the descriptions thereof in the Prospectus.
(x) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and, to the knowledge of such
counsel, there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required.
(xi) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act.
(xii) The Registration Statement has become effective under the
Securities Act; any required filing of the Prospectus or any preliminary
prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the
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Registration Statement has been issued, and no proceedings for that purpose
have been instituted or threatened.
(xiii) Each document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial statements and
schedules and other financial data included therein, as to which such
counsel need express no opinion) complied as to form when filed with the
Commission in all material respects with requirements of the Exchange Act
and the Registration Statement and the Prospectus and each amendment or
supplement thereto (except for the financial statements and schedules and
other financial data included therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act.
Nothing has come to such counsel's attention that would lead such counsel
to believe that (except for the financial statements and schedules and other
financial data included therein, as to which such counsel need express no
belief) (A) the Registration Statement, when such Registration Statement became
effective or on the Closing Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) the Prospectus,
as of its date and on the Closing Date, included or includes an untrue statement
of a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinions, such counsel may: (A) rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company given in their corporate capacity (it is understood that
such counsel shall be entitled to rely on certificates of such officers and
those of Subsidiaries with respect to the foreign qualification matters referred
to in subparagraph (ii) above) and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and (B) limit such opinions to the
laws of the States of Delaware and Wisconsin and the Federal laws of the United
States of America and assume that the laws of the State of New York are
identical in all relevant aspects to the substantive laws of the State of
Wisconsin. With respect to the matters to be covered in the preceding paragraph,
counsel may state his belief is based upon his participation in the preparation
of the Registration Statement, Prospectus and any amendment or supplement
thereto but is without independent check or verification except as specified.
(g) On the date hereof and on the Closing Date, PricewaterhouseCoopers LLP
shall have furnished to you a letter, dated such date, in form and substance
reasonably satisfactory to you, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
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(h) You shall have received on and as of the Closing Date an opinion of
Mayer, Brown & Platt, counsel to the Underwriters, with respect to the validity
of the Indenture and the Securities, the effectiveness of the Registration
Statement, the disclosure in the Registration Statement and the Prospectus and
such other matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(i) On or prior to the Closing Date, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. (a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted in respect
thereof), as incurred, to which such Underwriter or controlling person may be
subject, insofar as such losses, claims, damages or liabilities arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained or included in the Registration Statement or any amendment
thereof, the Prospectus, the Prospectus as amended or supplemented or any
amendment or supplement thereto, or any preliminary prospectus; or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or, in the case of the Registration Statement
or any amendment thereof, the Prospectus or the Prospectus as amended or
supplemented or any amendment or supplement thereto, necessary to make the
statements therein not misleading or, in the case of any preliminary
prospectus, necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the Company shall not be liable insofar as such
losses, claims, damages or liabilities arise out of or are based upon an untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus, the Prospectus as amended or supplemented or any such
amendment or supplement thereto in reliance upon and in conformity with
information furnished to the Company in writing by such Underwriter through the
Representatives expressly for inclusion therein; and provided, further, that the
Company shall not be liable to any Underwriter or any person controlling such
Underwriter under the indemnity agreement provided for in this paragraph (a)
with respect to a preliminary prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter or controlling person results
solely from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus
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(excluding documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if (A) the Company has previously furnished copies
thereof to such Underwriter and (B) the applicable untrue or alleged untrue
statement or omission was corrected therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the reasonable legal fees and other expenses reasonably incurred in
connection with any suit, action or proceeding or any claim asserted in respect
thereof), as incurred, to which the Company may become subject, insofar as such
losses, claims, damages or liabilities arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material
fact contained or included in the Registration Statement or any amendment
thereof, the Prospectus, the Prospectus as amended or supplemented or any
amendment or supplement thereto, or any preliminary prospectus; or
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or, in the case of the Registration Statement
or any amendment thereof, the Prospectus or the Prospectus as amended or
supplemented or any amendment or supplement thereto, necessary to make the
statements therein not misleading or, in the case of any preliminary
prospectus, necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
in each case to the extent, but only to the extent, that such untrue statement
or omission or alleged untrue statement or alleged omission was made in any
preliminary prospectus or in the Registration Statement or any amendment
thereof, the Prospectus or the Prospectus as amended or supplemented or any
amendment or supplement thereto in reliance upon and in conformance with
information furnished to the Company in writing by or on behalf of such
Underwriter expressly for use therein.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought (the "Indemnified
Person") pursuant to either of subsections (a) or (b) above, such Indemnified
Person shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing (in such detail as may be
available to such Indemnified Person). In no case shall an Indemnifying Person
be liable under this Section 7 with respect to any claim made against an
Indemnified Person unless such Indemnifying Person shall be notified in writing
of the nature of the claim within a reasonable time after the Indemnified Party
is aware of such claim thereof, but failure so to notify such Indemnifying
Person shall not relieve it from any liability that it may have otherwise than
on
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account of this Section 7. Upon such notice, the Indemnifying Person shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other Indemnifying Person similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Person, and after
notice from the Indemnifying Person to such Indemnified Person of its election
so to assume the defense thereof, the Indemnifying Person shall not be liable to
such Indemnified Person for any legal or other expenses subsequently incurred by
such Indemnified Person in connection with the defense thereof other than
reasonable costs of investigation or as provided in subsection (d) below. Each
Indemnified Person shall assist the Indemnifying Person in any defense
undertaken pursuant to this Section 7 by providing such assistance and
cooperation (including, without limitation, witness and documentary or other
information) as may be reasonably requested by the Indemnifying Person in
connection with such defense, provided that all reasonable costs and expenses of
such assistance and cooperation shall be borne by the Indemnifying Person.
(d) Notwithstanding anything herein contained, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in the applicable suit, action, proceeding, claim or demand
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
defenses available to them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses, to the extent they are reasonable, shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters and such
control persons of the Underwriters shall be designated in writing by the first
of the named Representatives on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company or authorized representatives shall be
designated in writing by the Company. In either case, the separate firm so
selected shall be reasonably satisfactory to the Indemnifying Person. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened claim, action, suit or proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless the Indemnifying Person has
first given the Indemnified Person reasonable prior written notice of such
proposed settlement and consulted in good faith with the Indemnified Person as
to the inclusion therein of an unconditional release of
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the Indemnified Person from all liability arising out of such claim, action,
suit or proceeding; and in the event that an Indemnified Person is an actual
party to such claim, action, suit or proceeding, the Indemnifying Party shall
not, without the prior written consent of the Indemnified Person, settle or
compromise or consent to the entry of any judgment therein unless the same
includes an unconditional release of such Indemnified Person from all liability
arising out of or otherwise relating to the subject matter of such claim,
action, suit or proceeding.
(e) If the indemnification provided for in subsections (a) or (b) above is
legally unavailable to an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such subsection, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations.
(f) The relative benefits received by the Company on the one hand and the
Underwriters on the other hand shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Company on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. With respect to any Underwriter, such
relative fault shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to any preliminary prospectus result from the fact that
such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
if the Company has previously furnished copies thereof to such Underwriter.
(g) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account the
equitable considerations referred to in subsection (f) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
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liabilities referred to in subsection (f) above shall be deemed to include,
subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue statement or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amounts of the Securities set forth opposite their names in Schedule II hereto,
and not joint.
(h) The indemnity and contribution agreements contained in this Section 7
are in addition to any liability that the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
(i) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if, from and including the date of this Agreement to and including
the Closing Date, (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, the New York Stock Exchange or the
National Association of Securities Dealers, Inc., (ii) trading of any securities
of, or guaranteed by, the Company shall have been suspended on any stock
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the good faith judgment of the Representatives, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities that it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriters shall be obligated severally in the proportions
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that the principal amount of Securities set forth opposite their respective
names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the principal
amount of Securities that any Underwriter has agreed to purchase pursuant to
Section I be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you and the Company for the purchase of such Securities are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or Underwriters or the
Company. In any such case, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply in
all material respects with the terms or to fulfill in all material respects any
of the conditions of this Agreement, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all documented out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or
by the first of the named Representatives set forth in Schedule I hereto alone
on behalf of the Underwriters, and any such action taken by you jointly or by
the first of the named Representatives set forth in Schedule I hereto alone
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
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the Underwriters shall be given at the address set forth in Schedule I hereto.
Notices to the Company shall be given to it at MGIC Plaza, 250 East Kilbourn
Avenue, Milwaukee, Wisconsin 53202 Attention: Treasurer, with a copy to the same
address, Attention: General Counsel.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
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Very truly yours,
MGIC INVESTMENT CORPORATION
By: /s/ James A. Karpowicz
---------------------------------
Name: James A. Karpowicz
Title: Vice President and
Treasurer
Accepted:
BANC OF AMERICA SECURITIES LLC
LEHMAN BROTHERS INC.
BANC ONE CAPITAL MARKETS, INC.
DAIN RAUSCHER WESSELS, A DIVISION OF DAIN RAUSCHER
INCORPORATED
ROBERT W. BAIRD & CO. INCORPORATED
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Lynn T. McConnell
------------------------------
Name: Lynn T. McConnell
Title: Managing Director
Acting severally on behalf of themselves and the several Underwriters
named herein.
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SCHEDULE I
The Securities
Representatives: Banc of America Securities LLC
Lehman Brothers Inc.
Banc One Capital Markets, Inc.
Dain Rauscher Wessels, a Division of Dain
Rauscher Incorporated
Robert W. Baird & Co. Incorporated
Title of Securities: 7-1/2% Senior Notes due 2005
Aggregate principal amount: $200,000,000
Maturity: October 15, 2005
Interest Rate: 7-1/2% per annum
Interest Payment Dates: April 15 and October 15 commencing April
15, 2001
Optional Redemption/
Repayment Provisions: Market make-whole at T+0.30%, as
described in the Prospectus
Sinking Fund Provisions: None
Price to Public: 99.609%
Price to Underwriters: 99.009%
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Form: Book-entry only form through the facilities
of The Depository Trust Company
Other Provisions: Not applicable
Closing Date and Location: October 20, 2000
9:00 a.m., Central Time
Foley & Lardner
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Address for Notices to
Underwriters: Banc of America Securities LLC
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, NC 28255
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SCHEDULE II
Principal Amount
Underwriter of Securities
----------- -------------
Banc of America Securities LLC $120,000,000
Lehman Brothers Inc. 50,000,000
Banc One Capital Markets, Inc. 20,000,000
Dain Rauscher Wessels, a Division of Dain Rauscher 5,000,000
Incorporated
Robert W. Baird & Co. Incorporated 5,000,000
Total: $200,000,000
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1
MGIC INVESTMENT CORPORATION,
ISSUER
TO
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
---------------
INDENTURE
---------------
DATED AS OF OCTOBER 15, 2000
2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) ....................................... 6.8
(a)(2) ................................................. 6.8
(b) .................................................... 6.9
Section 312(a) .......................................... 7.1
(b) .................................................... 7.2
(c) .................................................... 7.2
Section 313(a) .......................................... 7.3
(b)(2) ................................................. 7.3
(c) .................................................... 7.3
(d) .................................................... 7.3
Section 314(a) .......................................... 7.4
(c)(1) ................................................. 1.2
(c)(2) ................................................. 1.2
(e) .................................................... 1.2
(f) .................................................... 1.2
Section 315(a) .......................................... 6.1(a)
(b) ................................................... 6.1(b)
(c) ................................................... 6.1(b)
(d) ................................................... 6.1(c)
(e) ................................................... 5.15
Section 316(a) (last sentence) .......................... 1.1
(a)(1)(A) .............................................. 5.12
(a)(1)(B) .............................................. 5.13
(b) .................................................... 5.8
Section 317(a)(1) ....................................... 5.3
(a)(2) ................................................. 5.4
(b) .................................................... 0.3
Section 318(a) .......................................... 1.8
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
3
MGIC Indenture
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .......... 1
SECTION 1.1. DEFINITIONS ................................................. 1
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS ........................ 11
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE ...................... 12
SECTION 1.4. ACTS OF HOLDERS ............................................. 12
SECTION 1.5. NOTICES, ETC. TO THE TRUSTEE AND THE COMPANY ................ 14
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER ..................... 15
SECTION 1.7. LANGUAGE OF NOTICES ......................................... 16
SECTION 1.8. CONFLICT WITH TRUST INDENTURE ACT ........................... 16
SECTION 1.9. EFFECT OF HEADINGS AND TABLE OF CONTENTS .................... 16
SECTION 1.10. SUCCESSORS AND ASSIGNS ..................................... 16
SECTION 1.11. SEPARABILITY CLAUSE ........................................ 16
SECTION 1.12. BENEFITS OF INDENTURE ...................................... 16
SECTION 1.13. GOVERNING LAW .............................................. 17
SECTION 1.14. LEGAL HOLIDAYS ............................................. 17
SECTION 1.15. COUNTERPARTS ............................................... 17
SECTION 1.16. JUDGMENT CURRENCY .......................................... 17
SECTION 1.17. NO SECURITY INTEREST CREATED ............................... 18
SECTION 1.18. LIMITATION ON INDIVIDUAL LIABILITY ......................... 18
ARTICLE 2 SECURITIES FORMS ................................................. 18
SECTION 2.1. FORMS GENERALLY ............................................. 18
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION ............. 19
SECTION 2.3. SECURITIES IN GLOBAL FORM ................................... 19
ARTICLE 3 THE SECURITIES ................................................... 20
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES ........................ 20
SECTION 3.2. CURRENCY; DENOMINATIONS ..................................... 24
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING .............. 24
SECTION 3.4. TEMPORARY SECURITIES ........................................ 26
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE ......................... 27
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES ............ 30
SECTION 3.7. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS TO
INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED ........... 31
SECTION 3.8. PERSONS DEEMED OWNERS ....................................... 33
SECTION 3.9. CANCELLATION ................................................ 34
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SECTION 3.10. COMPUTATION OF INTEREST .................................... 34
ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE .......................... 34
SECTION 4.1. SATISFACTION AND DISCHARGE .................................. 34
SECTION 4.2. DEFEASANCE AND COVENANT DEFEASANCE .......................... 36
SECTION 4.3. APPLICATION OF TRUST MONEY .................................. 40
ARTICLE 5 REMEDIES ......................................................... 40
SECTION 5.1. EVENTS OF DEFAULT ........................................... 40
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT .......... 42
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE ..................................................... 44
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM ............................ 44
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS .................................................. 45
SECTION 5.6. APPLICATION OF MONEY COLLECTED .............................. 46
SECTION 5.7. LIMITATIONS ON SUITS ........................................ 46
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND ANY
PREMIUM, INTEREST AND ADDITIONAL AMOUNTS .................... 47
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES .......................... 47
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE ............................. 47
SECTION 5.11. DELAY OR OMISSION NOT WAIVER ............................... 48
SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES ........................... 48
SECTION 5.13. WAIVER OF PAST DEFAULTS .................................... 48
SECTION 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS .................... 49
SECTION 5.15. UNDERTAKING FOR COSTS ...................................... 49
ARTICLE 6 THE TRUSTEE ...................................................... 49
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES ......................... 49
SECTION 6.2. CERTAIN RIGHTS OF TRUSTEE ................................... 50
SECTION 6.3. NOTICE OF DEFAULT ........................................... 52
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES ...... 52
SECTION 6.5. MAY HOLD SECURITIES ......................................... 53
SECTION 6.6. MONEY HELD IN TRUST ......................................... 53
SECTION 6.7. COMPENSATION AND REIMBURSEMENT .............................. 53
SECTION 6.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY ..................... 54
SECTION 6.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR ........... 54
SECTION 6.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR ..................... 56
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS 57
SECTION 6.12. APPOINTMENT OF AUTHENTICATING AGENT ........................ 57
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ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY ................. 59
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS ... 59
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS ...... 60
SECTION 7.3. REPORTS BY TRUSTEE .......................................... 60
SECTION 7.4. REPORTS BY COMPANY .......................................... 60
ARTICLE 8 CONSOLIDATION, MERGER AND SALES .................................. 61
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS ........ 61
SECTION 8.2. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY .................... 62
ARTICLE 9 SUPPLEMENTAL INDENTURES .......................................... 62
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS .......... 62
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS ............. 64
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES ........................ 65
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES ........................... 65
SECTION 9.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES .......... 65
SECTION 9.6. CONFORMITY WITH TRUST INDENTURE ACT ......................... 66
SECTION 9.7. NOTICE OF SUPPLEMENTAL INDENTURE ............................ 66
ARTICLE 10 COVENANTS ....................................................... 66
SECTION 10.1. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS .................................................... 66
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY ............................ 66
SECTION 10.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST .......... 68
SECTION 10.4. ADDITIONAL AMOUNTS ......................................... 69
SECTION 10.5. LIMITATION ON LIENS OF STOCK OF DESIGNATED SUBSIDIARIES .... 70
SECTION 10.6. LIMITATION UPON SALES OF CAPITAL STOCK OF DESIGNATED
SUBSIDIARIES ............................................... 70
SECTION 10.7. CORPORATE EXISTENCE ........................................ 71
SECTION 10.8. WAIVER OF CERTAIN COVENANTS ................................ 71
SECTION 10.9. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS ................................................... 71
ARTICLE 11 REDEMPTION OF SECURITIES ........................................ 72
SECTION 11.1. APPLICABILITY OF ARTICLE ................................... 72
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE ...................... 72
SECTION 11.3. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED .......... 72
SECTION 11.4. NOTICE OF REDEMPTION ....................................... 73
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE ................................ 74
SECTION 11.6. SECURITIES PAYABLE ON REDEMPTION DATE ...................... 75
SECTION 11.7. SECURITIES REDEEMED IN PART ................................ 76
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ARTICLE 12 SINKING FUNDS ................................................... 76
SECTION 12.1. APPLICABILITY OF ARTICLE ................................... 76
SECTION 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES ...... 76
SECTION 12.3. REDEMPTION OF SECURITIES FOR SINKING FUND .................. 77
ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS .............................. 77
SECTION 13.1. APPLICABILITY OF ARTICLE ................................... 77
ARTICLE 14 SECURITIES IN FOREIGN CURRENCIES ................................ 78
SECTION 14.1. APPLICABILITY OF ARTICLE ................................... 78
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES ............................... 78
SECTION 15.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED .................. 78
SECTION 15.2. CALL, NOTICE AND PLACE OF MEETINGS ......................... 78
SECTION 15.3. PERSONS ENTITLED TO VOTE AT MEETINGS ....................... 79
SECTION 15.4. QUORUM; ACTION ............................................. 79
SECTION 15.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS ................................................... 80
SECTION 15.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS ............ 81
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INDENTURE, dated as of October 15, 2000 (the "Indenture"), among MGIC
INVESTMENT CORPORATION, a corporation duly organized and existing under the laws
of the State of Wisconsin (hereinafter called the "Company"), having its
principal executive office located at MGIC Plaza, 250 East Kilbourn Avenue,
Milwaukee, Wisconsin 53202, and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, a
national banking association, as trustee (hereinafter called the "Trustee"),
having its principal Corporate Trust Office located at 1 Bank One Plaza, Suite
IL 1-0126, Chicago, Illinois 60670-0126.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured,
unsubordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as herein defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Securities
or of any series thereof and any Coupons (as herein defined) as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America and, except as otherwise herein
expressly provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted in the
United States of America at the date or time of such computation;
(4) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both," not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act," when used with respect to any Holders, has the meaning specified in
Section 1.4.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.12 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
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"Authorized Officer" means, when used with respect to the Company, the
Chief Executive Officer, the Chief Financial Officer, the President, any Vice
President, the Treasurer, the Controller, the Chief Accounting Officer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company.
"Bearer Security" means any Security in the form established pursuant to
Section 2.1 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, delivered to the Trustee.
"Business Day," with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
generally accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" in respect of any Corporation means Capital Stock of any
class or classes (however designated) which has no preference as to the payment
of dividends, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Corporation, and which is not
subject to redemption by such Corporation.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions
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of this Indenture, and thereafter "Company" shall mean such successor Person,
and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by an Authorized
Officer, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community or
(ii) any currency unit or composite currency for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at 1 Bank One Plaza, Suite IL 1-0126, Chicago, Illinois 60670-0126,
Attention: Global Corporate Trust Services, except for purposes of Section 10.2,
such term shall mean the office or agency of the Trustee in the Borough of
Manhattan, the City of New York, which office at the date hereof is located at
14 Wall Street, Eighth Floor, New York, New York 10005.
"Corporation" includes corporations and limited liability companies and,
except for purposes of Article 8, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" or "Committee on Uniform Security Information Procedures
number" means the alphanumeric designation assigned to a Security developed by
the American Banker's Association that uniquely identifies securities trading in
the United States. The CUSIP number consists of 9 digits, the first 6 identify
the issue and 7-9 identify the issuer.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Designated Subsidiary" means any present or future consolidated Subsidiary
of the Company, the consolidated shareholder's equity of which constitutes at
least 15% of the consolidated shareholders' equity of the Company. As of March
31, 2000, the Company's Designated Subsidiaries were Mortgage Guaranty Insurance
Corporation and MGIC Reinsurance Corporation of Wisconsin.
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"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the euro, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the other government or governments which
issued the Foreign Currency in which the principal of or any premium or interest
on such Security or any Additional Amounts in respect thereof shall be payable,
in each case where the payment or payments thereunder are supported by the full
faith and credit of such government or governments or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such other government or governments, in each
case where the timely payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by the United States of America
or such other government or governments, and which, in the case of (i) or (ii),
are not callable or redeemable at the option of the issuer or issuers thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
or other amount with respect to the Government Obligation evidenced by such
depository receipt.
"Holder," in the case of any Registered Security, means the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means, with respect to any Person, (i) the principal of and
any premium and interest on, whether outstanding on the date hereof or hereafter
created, incurred, or assumed, which is (a) indebtedness of such Person for
money borrowed and (b) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon
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or, if and to the extent drawn upon, such drawing is reimbursed no later than
the third Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit); (v) all obligations of
the type referred to in clauses (i) through (iv) of other Persons and all
dividends of other Persons for the payment of which, in either case, such Person
is responsible or liable as obligor, guarantor or otherwise; (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons
secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets or the amount of
the obligation so secured; and (vii) any amendments, modifications, refundings,
renewals or extensions of any indebtedness or obligation described as
Indebtedness in clauses (i) through (vi) above. For purposes of this definition,
"indebtedness of such Person for money borrowed" means (i) any obligation of, or
any obligation guaranteed by, such Person for the repayment of borrowed money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) any obligation of, or any such obligation guaranteed by, such
Person evidenced by bonds, debentures, notes or similar written instruments,
including obligations assumed or incurred in connection with the acquisition of
property, assets or businesses (provided, however, that the deferred purchase
price of any other business or property or assets shall not be considered
Indebtedness if the purchase price thereof is payable in full within 90 days
from the date on which such indebtedness was created), and (iii) any obligations
of such Person as lessee under leases required to be capitalized on the balance
sheet of the lessee under generally accepted accounting principles and leases of
property or assets made as part of any sale and lease-back transaction to which
such Person is a party.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 3.1 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of accountants
that, with respect to the Company and any other obligor under the Securities or
the Coupons, are independent public accountants within the meaning of the
Securities Act of 1933, as amended, and the rules and regulations promulgated by
the Commission thereunder, who may be the independent public accountants
regularly retained by the Company or who may be other independent public
accountants. Such accountants or firm shall be entitled to rely upon any Opinion
of Counsel as to the interpretation of any legal matters relating to this
Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to
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a Security which provides for the payment of Additional Amounts pursuant to
Section 10.4, includes such Additional Amounts.
"Interest Payment Date," with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 1.16.
"Legal Holidays" means (i) any day on which banking institutions in the
city of New York, New York or in the city of Milwaukee, Wisconsin are authorized
or required by law or executive order to remain closed or (ii) a day on which
the corporate trust office of the Trustee is closed for business.
"Lien" has the meaning specified in Section 10.5.
"Maturity," with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"New York Banking Day" has the meaning specified in Section 1.16.
"Office" or "Agency," with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 10.2 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 10.2 or, to the
extent designated or required by Section 10.2 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officer's Certificate" means a certificate signed by an Authorized Officer
that is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to this
Indenture which provides for declaration of an amount less than the principal
face amount thereof to be due and payable upon acceleration pursuant to Section
5.2.
"Outstanding," when used with respect to any Securities, means, as of the
date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
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(a) any such Security theretofore cancelled by the Trustee or
the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 4.2) with
the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any Coupons appertaining
thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance pursuant to the terms hereof, except to
the extent provided in Section 4.2;
(d) any such Security which has been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to the
Trustee proof satisfactory to it that such Security is held
by a bona fide purchaser in whose hands such Security is a
valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by
this Indenture into securities of the Company or another
issuer, if the terms of such Security provide for such
conversion or exchange pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 5.2 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purposes shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as
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provided in (i) above) of such Security, and (iv) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making any
such determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or places
where the principal of, or any premium or interest on, or any Additional Amounts
with respect to such Security are payable as provided in or pursuant to this
Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered pursuant to Section 3.6 in exchange for or
in lieu of a lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Preferred Stock" in respect of any Corporation means Capital Stock of any
class or classes (however designated) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such Corporation, over shares of Capital Stock of
any other class of such Corporation.
"Redemption Date," with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to be
redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to Section
3.1 which is registered in a Security Register.
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"Regular Record Date" for the interest payable on any Registered Security
on any Interest Payment Date therefor means the date, if any, specified in or
pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 1.16.
"Responsible Officer" means any vice president, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, or any trust officer or any other authorized officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning specified in the Recitals.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon, or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means, in respect of any Person, any Corporation, limited or
general partnership or other business entity of which at the time of
determination more than 50% of the voting power of the shares of its Capital
Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of
such Person or (iii) one or more Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder; provided, however, that if at any time there is
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more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
"United States," except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to this
Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
SECTION 1.2. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of such individual, such
condition or covenant has been complied with.
SECTION 1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, provided
that such officer, after reasonable inquiry, has no reason to believe and does
not believe that the Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, provided that such counsel, after reasonable inquiry, has no
reason to believe and does not believe that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly
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called and held in accordance with the provisions of Article 15, or a
combination of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor of the
Trustee and the Company and any agent of the Trustee and the Company, if made in
the manner provided in this section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 15.6.
Without limiting the generality of this Section 1.4, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S. Depository
that is a Holder of a global Security, may make, give or take, by a proxy or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture to be made, given or taken by Holders, and a U.S. Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S. Depository's
standing instructions and customary practices.
The Company shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by Holders.
If such a record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent,
waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice, consent,
waiver or other Act shall be valid or effective if made, given or taken more
than 90 days after such record date.
(2) The fact and date of the execution by any Person of any such
instrument or writing referred to in this Section 1.4 may be proved in any
reasonable manner; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as
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depositary, by any trust company, bank, banker or other depositary reasonably
acceptable to the Company, wherever situated, if such certificate shall be
deemed by the Company and the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (i) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (ii)
such Bearer Security is produced to the Trustee by some other Person, or (iii)
such Bearer Security is surrendered in exchange for a Registered Security, or
(iv) such Bearer Security is no longer Outstanding. The ownership, principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner which the
Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
SECTION 1.5. NOTICES, ETC. TO THE TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Chief Financial Officer, Controller or Secretary, at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 1.6. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder
of a Registered Security affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of New
York and, if such Securities are then listed on any stock exchange outside the
United States, in an Authorized Newspaper in such city as the Company shall
advise the Trustee that such stock exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the earliest date
and the second such publication not later than the latest date prescribed for
the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published,
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shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.7. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
SECTION 1.8. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
SECTION 1.9. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.10. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.11. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.12. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
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SECTION 1.13. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
SECTION 1.14. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to such next
succeeding Business Day.
SECTION 1.15. COUNTERPARTS.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
SECTION 1.16. JUDGMENT CURRENCY.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the requisite amount of the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the
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full amount of the Required Currency so expressed to be payable and (iii) shall
not be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on
which banking institutions in The City of New York are authorized or obligated
by law, regulation or executive order to be closed.
SECTION 1.17. NO SECURITY INTEREST CREATED.
Subject to the provisions of Section 10.5, nothing in this Indenture or
in any Security, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect in any jurisdiction where property of the
Company or its Subsidiaries is or may be located.
SECTION 1.18. LIMITATION ON INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator, officer
or director, as such, past, present or future, of the Company, either directly
or through the Company, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareholders, officers or directors, as such, of the Company, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Security.
ARTICLE 2
SECURITIES FORMS
SECTION 2.1. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as
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may, consistently herewith, be determined by the officers executing such
Security or Coupon as evidenced by their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 6.12, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:
Authorized Officer
SECTION 2.3. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered pursuant to Section 3.3 or 3.4 with respect
thereto. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, the Trustee shall deliver and redeliver, in each case at the Company's
expense, any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.3 or 3.4 has
been, or simultaneously is,
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delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but need not be accompanied by or contained in an
Officer's Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Security, payment of principal
of, any premium and interest on, and any Additional Amounts in respect of, any
Security in temporary or permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a global Security (i) in the case of a global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 3.1.
ARTICLE 3
THE SECURITIES
SECTION 3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7,
upon repayment in part of any Registered Security of such series pursuant to
Article 13, upon surrender in part of any Registered Security for conversion
into other securities of the Company or exchange for securities of another
issuer pursuant to its terms, or pursuant to or as contemplated by the terms of
such Securities);
(3) if such Securities are to be issuable as Registered Securities, as
Bearer Securities or alternatively as Bearer Securities and Registered
Securities, and whether the Bearer Securities are to be issuable with Coupons,
without Coupons or both, and any restrictions applicable to the
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offer, sale or delivery of the Bearer Securities and the terms, if any, upon
which Bearer Securities may be exchanged for Registered Securities and vice
versa;
(4) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether such
Securities are to be issued in temporary or permanent global form or both, (ii)
whether beneficial owners of interests in any such global Security may exchange
such interests for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section 3.5, and
(iii) the name of the Depository or the U.S. Depository, as the case may be,
with respect to any such global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer Security or
global Security shall be dated (if other than the date of original issuance of
the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary Bearer
Security in global form payable in respect of an Interest Payment Date therefor
prior to the exchange, if any, of such temporary Bearer Security for definitive
Securities shall be paid to any clearing organization with respect to the
portion of such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification requirements) upon
which any such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest Payment
Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate or rates
are to be determined, the date or dates, if any, from which such interest shall
accrue or the method or methods, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest payable on
Registered Securities on any Interest Payment Date, whether and under what
circumstances Additional Amounts on such Securities or any of them shall be
payable, the notice, if any, to Holders regarding the determination of interest
on a floating rate Security and the manner of giving such notice, and the basis
upon which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities shall be
payable, any of such Securities that are Registered Securities may be
surrendered for registration of transfer or exchange, any of such Securities may
be surrendered for conversion or exchange and notices or demands to or upon the
Company in respect of such Securities and this Indenture may be served, the
extent to which, or
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the manner in which, any interest payment or Additional Amounts on a global
Security on an Interest Payment Date, will be paid and the manner in which any
principal of or premium, if any, on any global Security will be paid;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms and
conditions upon which such Securities may be redeemed, in whole or in part, at
the option of the Company;
(11) whether the Company is obligated to redeem or purchase any of
such Securities pursuant to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which, the period
or periods within which, the price or prices at which and the other terms and
conditions upon which such Securities shall be redeemed or purchased, in whole
or in part, pursuant to such obligation, and any provisions for the remarketing
of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof, and the denominations in which any of such
Securities that are Bearer Securities shall be issuable if other than the
denomination of $5,000;
(13) whether the Securities of the series will be convertible into
other securities of the Company and/or exchangeable for securities of another
issuer, and if so, the terms and conditions upon which such Securities will be
so convertible or exchangeable, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;
(14) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or
the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment
of the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be payable, at
the election of the Company or a Holder thereof or otherwise, in Dollars or in a
Foreign Currency other than that in which such Securities are stated to be
payable, the date or dates on which, the period or periods within which, and the
other terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or
any of them are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide for or
to facilitate the issuance of Securities denominated or payable, at the election
of the Company or a Holder thereof or otherwise, in a Foreign Currency;
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(17) whether the amount of payments of principal of, any premium or
interest on or any Additional Amounts with respect to such Securities may be
determined with reference to an index, formula or other method or methods (which
index, formula or method or methods may be based, without limitation, on one or
more Currencies, commodities, equity securities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of such
Securities, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
(19) whether either or both of Section 4.2(2) relating to
defeasance or Section 4.2(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, or any covenants in addition to
those specified in Section 4.2(3) relating to the Securities of such series
which shall be subject to covenant defeasance, and any deletions from, or
modifications or additions to, the provisions of Article 4 in respect of the
Securities of such series;
(20) whether any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such Securities to be
authenticated and delivered;
(21) if any of such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying Agent
or Authenticating Agent with respect to such Securities; and
(23) any other terms of such Securities and any other deletions
from or modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest
thereon, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officer's Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon written order of persons designated in the Officer's Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officer's Certificate or any applicable supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Officer's Certificate or supplemental indenture. All
Securities of any one series need not be issued at the same time and, unless
otherwise so provided, a series may be
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reopened for issuances of additional Securities of such series or to establish
additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth the terms of such series.
SECTION 3.2. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
SECTION 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, its Chief Financial Officer, its Controller or a
Vice President under its corporate seal, if any, reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries. Coupons shall be executed
on behalf of the Company by the President, Chief Financial Officer, Controller
or Treasurer of the Company. The signature of any of these officers on the
Securities or any Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities and Coupons or did not hold such offices at the date
of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officer's Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 3.1 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
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(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities
and Coupons, if any, have been established in conformity with
the provisions of this Indenture;
(b) all conditions precedent to the authentication
and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and that such
Securities and Coupons, when completed by appropriate
insertions, executed under the Company's corporate seal, if
any, and attested by duly authorized officers of the Company,
delivered by duly authorized officers of the Company to the
Trustee for authentication pursuant to this Indenture, and
authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legally valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement
thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement,
fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors' rights generally, and
subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
will entitle the Holders thereof to the benefits of this
Indenture; such Opinion of Counsel need express no opinion as
to the availability of equitable remedies and may assume that
the laws of the State of New York are identical in all
relevant aspects to the substantive laws of the State of
Wisconsin;
(c) all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
Coupons, if any, have been complied with in all material
respects; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officer's Certificate stating that, to the best
knowledge of the Persons executing such certificate, all conditions
precedent to the execution, authentication and delivery of such
Securities and Coupons, if any, appertaining thereto, have been
complied with, and no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities
shall have occurred and be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officer's
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate written request by an Authorized Officer of the Company
or any person designated in writing by an Authorized Officer that the Trustee
authenticate and deliver Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions
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precedent provided for in this Indenture relating to authentication and delivery
of such Securities continue to have been complied with and that no Event of
Default with respect to any of the Securities has occurred or is continuing.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 2.2 or 6.12 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 3.6 or 3.7, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
SECTION 3.4. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.3, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and
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containing identical terms and provisions; provided, however, that no definitive
Bearer Security, except as provided in or pursuant to this Indenture, shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in or
pursuant to this Indenture. Unless otherwise provided in or pursuant to this
Indenture with respect to a temporary global Security, until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to
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this Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, with
all unmatured Coupons and all matured Coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
10.2, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an Office or Agency for such series located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such Office or Agency for such
series in exchange for a Registered Security of such series and like tenor after
the close of business at such Office or Agency on (i) any Regular Record Date
and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such Office or Agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Interest Payment Date or proposed date of payment, as the case
may be (or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such global Security shall be so exchangeable, or (iii)
an Event of Default has
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occurred and is continuing with respect to the Securities. If the beneficial
owners of interests in a global Security are entitled to exchange such interests
for definitive Securities as the result of an event described in clause (i),
(ii) or (iii) of the preceding sentence, then without unnecessary delay but in
any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture,
and of the same series, containing identical terms and in aggregate principal
amount equal to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officer's Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole or
in part, for definitive Securities as described above without charge. The
Trustee shall authenticate and make available for delivery, in exchange for each
portion of such surrendered global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which (unless
such Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof, but subject to the satisfaction of
any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next succeeding Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of Securities of like tenor
and the same series under Section 11.3 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Registered Security selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 3.6, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been
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acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 3.6, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 10.2, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 3.6 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section 3.6, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
SECTION 3.7. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS
TO INTEREST AND CERTAIN ADDITIONAL AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest.
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Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed by the Company in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security, the
Special Record Date therefor and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as provided
in this clause (1). The Special Record Date for the payment of such
Defaulted Interest shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after notification to the Trustee of the proposed payment. The
Trustee shall, in the name and at the expense of the Company, cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of such Registered Security (or a Predecessor Security
thereof) at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause (2), such payment shall be deemed practicable by the Trustee.
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Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible into other securities of the Company or exchangeable for securities
of another issuer, which Registered Security is converted or exchanged after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Registered Security with respect to which the Stated Maturity is
prior to such Interest Payment Date), interest with respect to which the Stated
Maturity is on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion or exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Registered Security (or one or more predecessor
Registered Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Registered Security which is converted or
exchanged, interest with respect to which the Stated Maturity is after the date
of conversion or exchange of such Registered Security shall not be payable.
SECTION 3.8. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 3.5 and
3.7) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and
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such Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the owner of such global Security for all purposes
whatsoever. None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.9. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the Trustee shall be destroyed by the Trustee, unless by a Company Order the
Company directs their return to it.
SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 4.1. SATISFACTION AND DISCHARGE.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required
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or has been waived as provided in Section 3.5, (ii) Securities
and Coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.6, (iii) Coupons appertaining to Securities of such
series called for redemption and maturing after the relevant
Redemption Date whose surrender has been waived as provided in
Section 11.6, and (iv) Securities and Coupons of such series
for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, (i)
have become due and payable, or (ii) will become due and
payable at their Stated Maturity within one year, or (iii) if
redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, money in the Currency in
which such Securities are payable in an amount sufficient to
pay and discharge the entire indebtedness on such Securities
and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation, including the principal of,
any premium and interest on, and any Additional Amounts with
respect to such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 6.7 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this section, the obligations
of the Company and the Trustee with respect to the Securities of such series
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under Sections 3.5, 3.6, 4.3, 10.2 and 10.3, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 10.4 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 4.1(1)(b)), and with respect to any
rights to convert or exchange such Securities into securities of the Company or
another issuer shall survive.
SECTION 4.2. DEFEASANCE AND COVENANT DEFEASANCE.
(1) Unless pursuant to Section 3.1, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 4.2 shall not be applicable with respect to the Securities
of such series or (ii) covenant defeasance of the Securities of or
within a series under Section 4.2(3) shall not be applicable with
respect to the Securities of such series, then such provisions,
together with the other provisions of this Section 4.2 (with such
modifications thereto as may be specified pursuant to Section 3.1 with
respect to any Securities), shall be applicable to such Securities and
any Coupons appertaining thereto, and the Company may at its option by
Board Resolution, at any time, with respect to such Securities and any
Coupons appertaining thereto, elect to have Section 4.2(2) or Section
4.2(3) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth
below in this Section 4.2.
(2) Upon the Company's exercise of the above option applicable
to this Section 4.2(2) with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto on the date the conditions set forth in clause (4)
of this Section 4.2 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, which
shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 4.2 and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all of
its other obligations under such Securities and any Coupons
appertaining thereto, and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive,
solely from the trust fund described in clause (4) of this Section 4.2
and as more fully set forth in such clause, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, with respect to, such Securities and any
Coupons appertaining thereto when such payments are due, and any rights
of such Holder to convert such Securities into other securities of the
Company or exchange such Securities for securities of another issuer,
(ii) the obligations of the Company and the Trustee with respect to
such Securities under Sections 3.5, 3.6,
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10.2 and 10.3 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 10.4 (but only to
the extent that the Additional Amounts payable with respect to such
Securities exceed the amount deposited in respect of such Additional
Amounts pursuant to Section 4.2(4)(a) below), and with respect to any
rights to convert such Securities into other securities of the Company
or exchange such Securities for securities of another issuer, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 4.2. The Company may exercise its option under
this Section 4.2(2) notwithstanding the prior exercise of its option
under clause (3) of this Section 4.2 with respect to such Securities
and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the option to have this
Section 4.2(3) apply with respect to any Securities of or within a
series, the Company shall be released from its obligations under
Sections 10.5 and 10.6, and, to the extent specified pursuant to
Section 3.1(19), any other covenant applicable to such Securities, with
respect to such Outstanding Securities and any Coupons appertaining
thereto, on and after the date the conditions set forth in clause (4)
of this Section 4.2 are satisfied (hereinafter, "covenant defeasance"),
and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with any such covenant, but
shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with
respect to such Outstanding Securities and any Coupons appertaining
thereto, the Company may omit to comply with, and shall have no
liability in respect of, any term, condition or limitation set forth in
any such section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such
section or such other covenant or by reason of reference in any such
section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a
default or an Event of Default under Section 5.1(4) or 5.1(8) or
otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and Coupons
appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 4.2 to any Outstanding Securities of
or within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.8 who shall agree to
comply with the provisions of this Section 4.2 applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities and any Coupons appertaining thereto, (1) an amount
in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then
specified as payable at Stated Maturity, or
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(2) Government Obligations applicable to such Securities and
Coupons appertaining thereto (determined on the basis of the
Currency in which such Securities and Coupons appertaining
thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any
payment of principal of (and premium, if any) and interest, if
any, on such Securities and any Coupons appertaining thereto,
money in an amount, or (3) a combination thereof, in any case,
in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any
Coupons appertaining thereto at the Stated Maturity of such
principal or installment of principal or premium or interest
and (z) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any
Coupons appertaining thereto on the days on which such
payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any Coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any Coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit and, with respect to defeasance only, at any time
during the period ending on the 123rd day after the date of
such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of
this Section 4.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a letter ruling, or
there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
defeasance had not occurred.
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(e) In the case of an election under clause (3) of
this Section 4.2, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders
of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that, after the 123rd day
after the date of deposit, all money and Government
Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited or
caused to be deposited with the Trustee (or other qualifying
trustee) pursuant to this clause (4) to be held in trust will
not be subject to any case or proceeding (whether voluntary or
involuntary) in respect of the Company under any Federal or
State bankruptcy, insolvency, reorganization or other similar
law, or any decree or order for relief in respect of the
Company issued in connection therewith.
(g) The Company shall have delivered to the Trustee
an Officer's Certificate and the Company shall have delivered
to the Trustee an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance
under clause (2) or (3) of this Section 4.2 (as the case may
be) have been complied with.
Notwithstanding any other provisions of this Section
4.2(4), such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 3.1.
(5) Unless otherwise specified in or pursuant to this
Indenture or any Security, if, after a deposit referred to in Section
4.2(4)(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect pursuant to
Section 3.1 or the terms of such Security to receive payment in a
Currency other than that in which the deposit pursuant to Section
4.2(4)(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 4.2(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall
be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any), and
interest, if any, on, and Additional Amounts, if any, with respect to,
such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of
such Security into the Currency in which such Security becomes payable
as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable
market
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exchange rate for such Currency in effect on the second Business Day
prior to each payment date, or (y) with respect to a Conversion Event,
the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee (or other qualifying
trustee, collectively for purposes of this Section 4.2(5) and Section 4.3, the
"Trustee") against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 4.2 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.2 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request, any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 4.2 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 4.2.
SECTION 4.3. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money and Government Obligations (or other property as may be provided pursuant
to Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.1 or 4.2 in respect of any Outstanding Securities of any
series and any Coupons appertaining thereto shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and any
Coupons appertaining thereto and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional Amounts,
if any; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
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supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) default in the payment of any interest on any Security of
such series, or any Additional Amounts payable with respect thereto,
when such interest becomes or such Additional Amounts become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
on any Security of such series, or any Additional Amounts payable with
respect thereto, when such principal or premium becomes or such
Additional Amounts become due and payable at their Maturity; or
(3) default in the deposit of any sinking fund payment when
and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of a
series of Securities other than such series), and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which
there may be secured or evidenced, any Indebtedness of the Company or
any Designated Subsidiary (including, in each case, an Event of Default
under any other series of Securities), whether such Indebtedness now
exists or shall hereafter be created or incurred, shall happen and
shall consist, in the aggregate, of the default in the payment of
$40,000,000 or more in principal amount of such Indebtedness at the
maturity thereof (after giving effect to any applicable grace period)
or shall, in the aggregate, result in such Indebtedness in principal
amount of $40,000,000 or more becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such default shall not be cured or such acceleration shall
not be rescinded, stayed or annulled or, in the case of Indebtedness
contested in good faith by the Company, a bond, letter of credit,
escrow deposit or other cash equivalent in an amount sufficient to
discharge such Indebtedness having been set aside by the Company, in
each case within a period of 30 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such event of default and requiring the Company to cause
such acceleration to be rescinded or annulled or to
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cause such Indebtedness to be discharged and stating that such notice
is a "Notice of Default" hereunder; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the
Company in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law
and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company and such
decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company of any substantial part of the
property of the Company or ordering the winding up or
liquidation of the affairs of the Company; or
(7) the commencement by the Company of a voluntary proceeding
under any applicable bankruptcy, insolvency, reorganization or other
similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Company to the entry of a decree or
order for relief in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by
the Company of a petition or answer or consent seeking reorganization,
arrangement, adjustment or composition of the Company or relief under
any applicable law, or the consent by the Company to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or similar official of the
Company or any substantial part of the property of the Company or the
making by the Company of an assignment for the benefit of creditors, or
the taking of corporate action by the Company in furtherance of any
such action; or
(8) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (6) or (7)
of Section 5.1) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by
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the Holders), and upon any such declaration such principal or such lesser amount
shall become immediately due and payable.
If an Event of Default specified in clause (6) or (7) of Section 5.1
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
of money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto,
(b) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon and
any Additional Amounts with respect thereto at the rate or
rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities, and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section
6.7; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section
5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or
any Coupon appertaining thereto when such interest or Additional
Amounts shall have become due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of or any
premium on any Security or any Additional Amounts with respect thereto
at their Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 6.7.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
SECTION 5.4. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
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Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of any
applicable series, of the principal and any premium, interest and
Additional Amounts owing and unpaid in respect of the Securities and
any Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents or
counsel) and of the Holders of Securities or any Coupons appertaining
thereto allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
SECTION 5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of the
Securities or Coupons in respect of which such judgment has been recovered.
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SECTION 5.6. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee such
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
SECTION 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 3.5 and 3.7) interest on, and any Additional Amounts with respect
to, such Security or payment of such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security or
Coupon (or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 5.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 5.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of such series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such
action.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 5.14. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 5.15. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security into other securities in accordance with its terms.
ARTICLE 6
THE TRUSTEE
SECTION 6.1. CERTAIN DUTIES AND RESPONSIBILITIES
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
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of this Indenture; but in the case of any such certificates or opinions
that 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 but not to verify or confirm the contents thereof.
(b) In case an Event of Default actually known to a Responsible Office
of the Trustee has occurred and is continuing, 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.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section 6.1;
(2) the Trustee shall not be liable for any action taken or
error of judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) 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 of a majority in principal amount of the
Outstanding Securities 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.
SECTION 6.2. CERTAIN RIGHTS OF TRUSTEE.
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 3.3 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically
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prescribed) may, in the absence of bad faith on its part, may request
and rely upon an Officer's Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee such security or
indemnity as is reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document, but
the Trustee, in its discretion, may, but shall not be obligated to make
such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Authenticating Agent, Paying Agent, and Security
Registrar shall have the same protections as the Trustee set forth
hereunder;
(9) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers;
(10) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Article 6;
(11) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith that it believed to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture, unless the Trustee's conduct constitutes
negligence;
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(12) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified; and
(13) the Trustee shall not be deemed to have notice or actual
knowledge of any Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
Event of Default is received by the Trustee pursuant to Section 1.5
hereof. Except as otherwise expressly provided herein, the Trustee
shall not be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements
herein or in any series of Securities.
SECTION 6.3. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(3), notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any), or interest, if any, on, or Additional
Amounts or any sinking fund or purchase fund installment with respect to, any
Security of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the best interest of
the Holders of Securities and Coupons of such series; and provided, further,
that in the case of any default of the character specified in Section 5.1(5)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purposes of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 6.4. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
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SECTION 6.5. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
SECTION 6.6. MONEY HELD IN TRUST.
Except as provided in Section 4.3 and Section 10.3, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
SECTION 6.7. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's
negligence or bad faith; and
(3) to indemnify the Trustee and its agents, officers,
directors and employees for, and to hold them harmless against, any
loss, liability or expense incurred without negligence or bad faith on
their part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder, except to the extent that any such loss, liability or
expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
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To the extent permitted by law, any compensation or expense incurred by
the Trustee after a default specified in or pursuant to Section 5.1 is intended
to constitute an expense of administration under any then applicable bankruptcy
or insolvency law. "Trustee" for purposes of this Section 6.7 shall include any
predecessor Trustee but the negligence or bad faith of any Trustee shall not
affect the rights of any other Trustee under this Section 6.7.
The provisions of this Section 6.7 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee
and shall apply with equal force and effect to the Trustee in its capacity as
Authenticating Agent, Paying Agent or Security Registrar.
SECTION 6.8. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, that is eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000, and that is subject to supervision or examination
by Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.9. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee pursuant to Section 6.10.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.10 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a
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Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request
therefor by the Company or any such Holder, or
(c) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a
Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject
to Section 315(e) of the Trust Indenture Act, any Holder of a
Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to
all Securities of such series and the appointment of a
successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of such series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.10. If,
within one year after such resignation, removal or incapacity, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
6.10, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner
required by Section 6.10, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Registered Securities, if
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any, of such series as their names and addresses appear in the Security
Register and, if Securities of such series are issued as Bearer
Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
(7) In no event shall any retiring Trustee be liable for the
acts or omissions of any successor Trustee hereunder.
SECTION 6.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties hereunder of the retiring Trustee; but, on the request of the
Company or such successor Trustee, such retiring Trustee, upon payment
of its charges, shall execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the
retiring Trustee and, subject to Section 10.3, shall duly assign,
transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.7.
(2) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute
and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and
that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other
Trustee hereunder, and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the
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retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates other than as hereinafter expressly set
forth, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or such successor Trustee, such
retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates and subject to Section 10.3 shall duly
assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor
Trustee relates, subject to its claim, if any, provided for in Section
6.7.
(3) Upon request of any Person appointed hereunder as a
successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in
paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article.
SECTION 6.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding by sale or otherwise to all or substantially all of the
corporate trust business of the Trustee shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.12. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is
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made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
Corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding by sale or otherwise to all or
substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, provided such Corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 6.7.
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The provisions of Sections 3.8, 6.4 and 6.5 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By
as Authenticating Agent
By
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officer's Certificate by the Company), shall
appoint in accordance with this section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series
not later than June 1 and December 1 of the year or upon such other
dates as are set forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such series, a list, in each
case in such form as the Trustee may reasonably require, of the names
and addresses of Holders as of the applicable date, and
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(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
SECTION 7.3. REPORTS BY TRUSTEE.
(1) Within 60 days after May 15 of each year commencing with
the first May 15 following the first issuance of Securities pursuant to
Section 3.1, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15 with respect to
any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and 313(d) of
the Trust Indenture Act.
SECTION 7.4. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not
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required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE 8
CONSOLIDATION, MERGER AND SALES
SECTION 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
(whether or not affiliated with the Company), or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
other Person (whether or not affiliated with the Company), and the Company shall
not permit any other Person (whether or not affiliated with the Company) to
consolidate with or merge into the Company; unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company as an entirety or
substantially as an entirety shall be a Corporation organized and
existing under the laws of the United States of America or any state
thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and
delivered to the Trustee the due and punctual payment of the principal
of, any premium and interest on and any Additional Amounts with respect
to all the Securities and the performance of every obligation in this
Indenture and the Outstanding Securities on the part of the Company to
be performed or observed and shall provide for conversion or exchange
rights in
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accordance with the provisions of the Securities of any series that are
convertible or exchangeable into Common Stock or other securities;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default or event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.2. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation by the Company with or merger of the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 8.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company, contained herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (as shall be specified
in such supplemental indenture or indentures) or to surrender any right
or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided any such action shall not adversely affect the interests of
the Holders of Outstanding Securities of any series or any Coupons
appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series
and any Coupons appertaining thereto as permitted by Sections 2.1 and
3.1; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.10; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not
adversely affect the interests of the Holders of Securities of any
series then Outstanding or any Coupons appertaining thereto in any
material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as herein
set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article 4, provided that any such action shall not adversely affect the
interests of any Holder of an Outstanding Security of such series and
any Coupons appertaining thereto or any other Outstanding Security or
Coupon in any material respect; or
(10) to secure the Securities pursuant to Section 10.5 or
otherwise; or
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(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interests of the
Holders of any Securities then Outstanding.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Company's Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such series; provided, however,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts with
respect to, any Security, or reduce the principal amount thereof or the
rate (or modify the calculation of such rate) of interest thereon or
any Additional Amounts with respect thereto, or any premium payable
upon the redemption thereof or otherwise, or change the obligation of
the Company to pay Additional Amounts pursuant to the terms hereof
(except as contemplated by Section 8.1(1) and permitted by Section
9.1(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2 or the
amount thereof provable in bankruptcy pursuant to Section 5.4, change
the redemption provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article 13, or change the
Place of Payment, Currency in which the principal of, any premium or
interest on, or any Additional Amounts with respect to any Security is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of the Holder, on or after the date for
repayment), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 15.4 for quorum or voting, or
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(3) modify any of the provisions of this section, Section 5.13
or Section 10.8, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) make any change that adversely affects the right to
convert or exchange any Security into or for securities of the Company
or other securities, (whether or not issued by the Company) cash or
property in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture and an
Officer's Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
SECTION 9.5. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
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may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
SECTION 9.6. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.7. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.2, the Company shall transmit to
the Holders of Outstanding Securities of any series affected thereby a notice
setting forth the substance of such supplemental indenture.
ARTICLE 10
COVENANTS
SECTION 10.1. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
SECTION 10.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment for
such series which is located outside the United States where Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment; provided, however, that if the Securities of such series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange
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shall so require, the Company shall maintain a Paying Agent in London,
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such Office or Agency. If at any
time the Company shall fail to maintain any such required Office or Agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of such series and any
Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in
or pursuant to this Indenture, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York, Chicago, Illinois or Milwaukee, Wisconsin
for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
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SECTION 10.3. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal, any premium or interest on or any Additional
Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
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Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any Coupon appertaining thereto shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.4. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officer's Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or
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the Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of such series. If any such withholding shall
be required, then such Officer's Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or Coupons, and the Company agrees to pay to the Trustee or such
Paying Agent the Additional Amounts required by the terms of such Securities.
The Company covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer's
Certificate furnished pursuant to this Section 10.4.
SECTION 10.5. LIMITATION ON LIENS ON STOCK OF DESIGNATED SUBSIDIARIES.
The Company will not, and it will not permit any Subsidiary of the
Company to, at any time, directly or indirectly, create, assume, incur or permit
to exist any Indebtedness secured by a pledge, lien or other encumbrance (any
pledge, lien or other encumbrance being hereinafter in this Section referred to
as a "lien") on the capital stock of any Designated Subsidiary without making
effective provision whereby the Securities then Outstanding (and, if the Company
so elects, any other Indebtedness of the Company that is not subordinate to the
Securities and with respect to which the governing instruments require, or
pursuant to which the Company is otherwise obligated or required, to provide
such security) shall be equally and ratably secured with such secured
Indebtedness so long as such other Indebtedness shall be secured. For purposes
of this Section 10.5 only, "Indebtedness," in addition to those items specified
in Section 1.1 hereof, shall include any obligation of, or any such obligation
guaranteed by, any Person for the payment of amounts due under a swap agreement
or other similar instrument or agreement, or foreign currency hedge exchange or
similar instrument or agreement.
If the Company shall hereafter be required to secure the Securities
equally and ratably with any other Indebtedness pursuant to this section, (i)
the Company will promptly deliver to the Trustee an Officers' Certificate
stating that the foregoing covenant has been complied with, and an Opinion of
Counsel stating that in the opinion of such counsel, the foregoing covenant has
been complied with and that any instruments executed by the Company or any
Subsidiary of the Company in the performance of the foregoing covenant comply
with the requirements of the foregoing covenant and (ii) the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce the
rights of the holder of the Securities so secured.
SECTION 10.6. LIMITATION UPON SALES OF CAPITAL STOCK OF DESIGNATED
SUBSIDIARIES.
The Company will not sell, transfer or otherwise dispose of (except to
a Subsidiary, which agrees in writing to hold such transferred shares subject to
the terms of this Section 10.6), and it will not permit any Designated
Subsidiary to sell, transfer or otherwise dispose of (except to the Company or
to a Subsidiary, which agrees in writing to hold such transferred shares subject
to the terms of this Section 10.6), any shares of Capital Stock of a Designated
Subsidiary,
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unless the entire Capital Stock of such Designated Subsidiary at the time owned
by the Company and its Designated Subsidiaries shall be disposed of at the same
time for a consideration consisting of cash or other property, which, in the
opinion of the Board of Directors, is at least equal to the fair value thereof.
SECTION 10.7. CORPORATE EXISTENCE.
Subject to Article 8, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each of its Designated Subsidiaries and their respective
rights (charter and statutory) and franchises; provided, however, that the
foregoing shall not obligate the Company or any of its Designated Subsidiaries
to preserve any such right or franchise if the Company or any such Designated
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of its business or the business of such Designated Subsidiary and
that the loss thereof is not disadvantageous in any material respect to any
Holder.
SECTION 10.8. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 10.5, 10.6 or 10.7 with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 10.9. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN
DEFAULTS.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not
be contained in or accompanied by an Officer's Certificate) signed by
the principal executive officer, the principal financial officer or the
principal accounting officer of the Company, stating that
(a) a review of the activities of the Company during
such year and of its performance under this Indenture has been
made under his or her supervision, and
(b) to the best of his or her knowledge, based on
such review, (a) the Company has complied with all the
conditions and covenants imposed on it under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status
thereof, and (b) no event has occurred and is continuing which
is, or after notice or lapse of time or both would become, an
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Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the
nature and status thereof.
(2) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or
any event which after notice or lapse of time or both would become an
Event of Default pursuant to clause (4) of Section 5.1.
(3) The Trustee shall have no duty to monitor the Company's
compliance with the covenants contained in this Article 10 other than
as specifically set forth in this Section 10.9.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.1. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
SECTION 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of (a) less than all of the Securities of any series or (b) all
of the Securities of any series, with the same issue date, interest rate or
formula, Stated Maturity and other terms, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
SECTION 11.3. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
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The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted into other securities of the Company or exchanged for securities of
another issuer in part before termination of the conversion or exchange right
with respect to the portion of the Security so selected, the converted portion
of such Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted or exchanged during a
selection of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.
SECTION 11.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
1.6, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
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(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and Additional
Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and
no Registered Securities of such series are to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not
subject to redemption on the Redemption Date pursuant to Section 3.5 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) in the case of Securities of any series that are
convertible into Common Stock of the Company or exchangeable for other
securities, the conversion or exchange price or rate, the date or dates
on which the right to convert or exchange the principal of the
Securities of such series to be redeemed will commence or terminate and
the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.6 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 11.4, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust
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as provided in Section 10.3) an amount of money in the applicable Currency
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date, unless otherwise specified pursuant to
Section 3.1 or in the Securities of such series) any accrued interest on and
Additional Amounts with respect thereto, all such Securities or portions thereof
which are to be redeemed on that date.
SECTION 11.6. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 10.2),
and provided, further, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 10.2.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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SECTION 11.7. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 12.1. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
SECTION 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities
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or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, provided that such series of Securities have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If, as a result of
the delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 12.2, the principal amount of Securities of such series
to be redeemed in order to satisfy the remaining sinking fund payment shall be
less than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company Request, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, provided, however, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that series purchased by the Company
having an unpaid principal amount equal to the cash payment requested to be
released to the Company.
SECTION 12.3. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.2, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officer's Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 13.1. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 3.9, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such
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Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
13.1, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
SECTION 14.1. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.1. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 15.2. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 15.1, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or, if Securities of such series have been issued in
whole or in part as Bearer Securities, in London or in such place
outside
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the United States as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in
Section 1.6, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 15.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first
publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 1.6)
or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New
York, or, if Securities of such series are to be issued as Bearer
Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in clause (1) of
this section.
SECTION 15.3. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 15.4. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for any meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any reconvened meeting, such
reconvened meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such reconvened meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 15.2(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as
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provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
SECTION 15.5. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in
regard to proof of the holding of Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 1.4 and the appointment of any proxy shall be
proved in the manner specified in Section 1.4 or by having the
signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 1.4 to certify
to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 1.4
or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 15.2(2), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
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(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount
of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security
of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 15.2 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 15.6. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
[Intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] MGIC INVESTMENT CORPORATION
Attest:
/s/ Lisa M. Pendergast
By /s/ James A. Karpowicz
--------------------------------
Name: James A. Karpowicz
Title: Vice President and Treasurer
[SEAL] BANK ONE TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By /s/ Marla S. Roth
--------------------------------
Name: Marla S. Roth
Title: Assistant Vice President
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Exhibit 4.2
MGIC INVESTMENT CORPORATION
OFFICER'S CERTIFICATE
DATED AS OF OCTOBER 17, 2000
SETTING FORTH TERMS OF A SERIES OF DEBT SECURITIES
7-1/2% SENIOR NOTES DUE 2005
PURSUANT TO THE INDENTURE
DATED AS OF OCTOBER 15, 2000
2
OFFICER'S CERTIFICATE
The undersigned, the Senior Vice President, Controller and
Chief Accounting Officer and the Vice President and Treasurer of MGIC Investment
Corporation, a Wisconsin corporation (the "Company"), hereby certify as provided
below pursuant to Section 3.1 of the Indenture, dated as of October 15, 2000
(the "Indenture"), between the Company and Bank One Trust Company, National
Association (the "Trustee"). This Officer's Certificate is delivered, pursuant
to authority granted to the undersigned by resolutions adopted June 21, 2000 by
the Board of Directors of the Company, for the purpose of creating and setting
forth the terms of a series of Securities to be issued pursuant to the
Indenture. Capitalized terms not otherwise defined herein are used as defined in
the Indenture.
1. The Board of Directors of the Company has authorized the creation by
the Company of one or more series of Securities under the Indenture through one
or more Officer's Certificates and pursuant to such authorization and in
accordance with the Indenture this Officer's Certificate is being delivered to
the Trustee to establish the terms of a series of Securities as set forth
therein.
2. The title of the Securities shall be "7-1/2% Senior Notes due 2005"
(herein called the "Notes").
3. The aggregate principal amount of Notes which may be authenticated
and delivered under the Indenture is limited to U.S. $200,000,000, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes as provided in Sections 3.4, 3.5, 3.6,
9.5, or 11.7 of the Indenture, upon repayment in part of any Registered Security
of such series pursuant to Article 13 of the Indenture, upon surrender in part
of any Registered Security for conversion into other securities of the Company
or exchange for securities of another issuer pursuant to its terms, or pursuant
to or as contemplated by the terms of such Notes. Notwithstanding the foregoing
limitation on aggregate principal amount of the Notes, the Notes may be reopened
for issuances of additional Notes in accordance with Section 3.1 of the
Indenture.
4. The Notes shall be issuable as Registered Securities and shall not
be exchangeable for Bearer Securities.
5. Subject to earlier redemption, the principal of the Notes shall be
payable in U.S. dollars on October 15, 2005.
6. The Notes shall bear interest at the rate of 7-1/2% per annum; such
interest shall accrue from October 20, 2000 (or from the most recent interest
payment date to which interest on the Notes has been paid or provided for); the
interest payment dates on which such interest shall be payable shall be April 15
and October 15 in each year, commencing April 15, 2001; the Regular Record Dates
for the determination of Holders to whom interest is payable shall be the April
1 or October 1 next preceding each Interest Payment Date. Interest on the Notes
shall be payable in U.S. dollars.
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7. Pursuant to the Indenture, the Trustee has been appointed as the
Security Registrar for the Notes. The Trustee is hereby further appointed as the
initial Paying Agent and transfer agent of the Notes. The principal of and
interest on the Notes shall be payable at the office of the Paying Agent, which
shall initially be located in the Borough of Manhattan, The City of New York.
8. The Notes shall be redeemable at any time in whole or from time to
time in part at a Redemption Price equal to the sum of 100% of the principal
amount of the Notes being redeemed, accrued interest thereon to the Redemption
Date, and the Make-Whole Amount, if any, with respect to such Notes; provided,
however, that installments of interest on Notes due on an Interest Payment Date
which occurs on or before any Redemption Date shall be payable to the Holders of
such Notes who were registered Holders as of the close of business on the Record
Date immediately preceding such Interest Payment Date.
9. The terms defined below shall, for all purposes of the Notes under
the Indenture and this Officer's Certificate, have the meanings specified,
unless the context clearly otherwise requires or unless otherwise indicated:
"Make-Whole Amount" means, in connection with any optional
redemption, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest, exclusive of interest accrued to the Redemption Date, that
would have been payable in respect of each such dollar if such redemption had
not been made, determined by discounting, on a semi-annual basis, such principal
and interest at the Reinvestment Rate, as determined on the third Business Day
preceding the date such notice of redemption is given, from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, to the date of redemption, over (ii) the aggregate principal
amount of the Notes being redeemed. The Make-Whole Amount shall be calculated by
the Company and set forth in a certificate of an Authorized Officer delivered to
the Trustee, and the Trustee shall be entitled to rely on said certificate.
"Reinvestment Rate" means 0.30% plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity, rounded to the nearest month, corresponding to the remaining life to
maturity, as of the payment date of the principal amount of the Notes being
redeemed. If no maturity exactly corresponds to such maturity, yields for the
two published maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used. If the format or content of the Statistical Release changes in a
manner that precludes determination of the Treasury yield in the above manner,
then the Treasury yield shall be determined in the manner that most closely
approximates the above manner, as reasonably determined by the Company.
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"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any required determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
10. The Notes shall not be subject to any sinking fund and shall not be
repurchasable at the option of a Holder.
11. The Notes shall not be convertible into other securities of the
Company or exchangeable for securities of another issuer.
12. Defeasance and covenant defeasance under Section 4.2(2) and Section
4.2(3) of the Indenture shall be applicable to the Notes.
13. The Notes shall not be issuable upon the exercise of warrants.
14. The Notes shall initially be issued in whole in the form of one or
more permanent global Securities. The Depository Trust Company, a clearing
agency registered under the Securities Exchange Act of 1934, as amended ("DTC"),
shall initially serve as the depositary for such global Security or Securities.
For so long as DTC shall be the depositary, all Notes shall be registered in its
name or in the name of a nominee thereof. While the Notes are evidenced by one
or more global Securities, the depositary or its nominee, as the case may be,
shall be the sole Holder thereof for all purposes under the Indenture. Neither
the Company nor the Trustee shall have any responsibility or the obligation to
the depositary's participants or the beneficial owners for whom they act with
respect to their receipt from the depositary of payments on the Notes or notices
given under the Indenture. The global Security or Securities provided for
hereunder shall bear such legend or legends as may be required from time to time
by the depositary.
15. Except as hereinafter described, Notes in definitive form will not
be issued. Notwithstanding the foregoing, in the event the Company decides to
discontinue the use of global Securities, any Event of Default has occurred and
is continuing or if DTC is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue individual Notes in certificated
form to owners of "book-entry" ownership interests in exchange for the Notes
held by DTC or its nominee, as the case may be. In such instance, an owner of a
"book-entry" ownership interest will be entitled to physical delivery of
certificates equal in principal amount to such "book-entry" ownership interest
and to have such certificates registered in its name. Individual certificates so
issued will be issued in denominations of $1,000 or any multiple thereof.
16. Additional terms regarding the Notes are as set forth in the form
of the Notes set forth below.
17. The form of the Notes shall be substantially as follows:
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[Form of 7-1/2% Note due 2005]
No. R-__________ $____________
MGIC INVESTMENT CORPORATION
7-1/2% Note due 2005
CUSIP No.: 552845 AE 9
MGIC INVESTMENT CORPORATION
promises to pay to
-----------------------------------------------------
or registered assigns
the principal sum of Dollars on October 15, 2005
---------------------------
Interest Payment Dates: April 15 and October 15
Regular Record Dates: April 1 and October 1
Dated:
TRUSTEE'S CERTIFICATE OF MGIC INVESTMENT CORPORATION
AUTHENTICATION
This is one of the Securities of the series By:
designated therein referred to in the ------------------------
within-mentioned Indenture Authorized Authorized Officer
Officer
BANK ONE TRUST COMPANY, (CORPORATE SEAL)
NATIONAL ASSOCIATION, as Trustee
By:
-------------------------- --------------------------
Authorized Officer Authorized Officer
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MGIC INVESTMENT CORPORATION
7-1/2% Note due 2005
INTEREST. MGIC Investment Corporation, a Wisconsin corporation
(the "Company"), promises to pay interest on the principal amount of this
Security (as defined herein) at the rate per annum shown above. The Company
shall pay interest semiannually on April 15 and October 15 of each year
commencing April 15, 2001. Interest on the Securities shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from October 20, 2000. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.
METHOD OF PAYMENT. The Company shall pay interest on the
Securities to the persons who are registered holders of Securities at the close
of business on the Record Date for the next Interest Payment Date, except as
otherwise provided in the Indenture. Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company shall pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may pay principal
and interest by check payable in such money. The Company may mail an interest
check to a Holder's registered address.
SECURITIES AGENTS. Initially, Bank One Trust Company, National
Association, shall act as Paying Agent, transfer agent and Security Registrar.
The Company may change any Paying Agent, transfer agent or Security Registrar
without notice. The Company or any Affiliate of the Company may act in any such
capacity. Subject to certain conditions, the Company may change the Trustee.
INDENTURE. The Company issued the securities of this series
(individually a "Security" and collectively the "Securities") under an
Indenture, dated as of October 15, 2000 (the "Indenture"), between the Company
and Bank One Trust Company, National Association (the "Trustee"). The terms of
the Securities include those stated in the Indenture and in the Officer's
Certificate establishing the Securities and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb). Holders
are referred to the Indenture, the above-referenced Officer's Certificate and
such Act for a statement of such terms. All capitalized terms used but not
defined herein have the respective meanings ascribed thereto in the Indenture.
MATURITY. The principal on the Securities shall be payable on
October 15, 2005.
REDEMPTION PRIOR TO MATURITY. The Securities shall be
redeemable at any time in whole or from time to time in part at a Redemption
Price equal to the sum of 100% of the principal amount of the Securities being
redeemed, accrued interest thereon to the Redemption Date, and the Make-Whole
Amount, if any, with respect to such Securities; provided, however, that
installments of interest on Securities due on an Interest Payment Date which
occurs on or before any Redemption Date shall be payable to the Holders of such
Securities who were registered Holders as of the close of business on the Record
Date immediately preceding such Interest Payment Date. The Company shall give
notice of any redemption of
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any Securities to Holders of the Securities to be redeemed at the addresses of
such Holders, as shown in the Security Register, not more than 60 nor less than
30 days prior to the Redemption Date. The notice of redemption will specify,
among other items, the Redemption Price and the aggregate principal amount of
the Securities to be redeemed. If less than all of the Outstanding Securities
are to be redeemed, then the Trustee shall select the Securities to be redeemed
in principal amounts of $1,000 or integral multiples of $1,000 by lot, pro rata
or by another method the Trustee considers fair and appropriate. The Indenture
contains additional provisions with respect to any redemption of the Securities.
DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 and whole multiples
of $1,000. The transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The transfer agent may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or the Indenture.
PERSONS DEEMED OWNERS. The registered holder of a Security may
be treated as its owner for all purposes.
AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended with the consent of the Holders of
not less than a majority in aggregate principal amount of the Securities of all
series affected by the amendment. Subject to certain exceptions, a default on a
series may be waived with the consent of the Holders of not less than a majority
in principal amount of the series.
Without the consent of any Holder, the Indenture or the
Securities may be amended to, among other things, cure any ambiguity or correct
any omission, defect or inconsistency; to provide for assumption of Company
obligations to Holders; or to make any change that does not materially adversely
affect the interests of any Holders of Securities then Outstanding.
LIMITATIONS ON DEBT. The Securities are unsecured general
obligations of the Company limited to $200,000,000 principal amount; provided,
however, that the Securities may be reopened for issuances of additional
Securities in accordance with the Indenture. The Indenture does not limit other
unsecured debt.
SUCCESSORS. When a successor assumes all the obligations of
the Company under the Securities and the Indenture, the Company shall be
released from those obligations.
DEFEASANCE PRIOR TO MATURITY. Subject to certain conditions,
the Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee U.S.
dollars or U.S. Government Obligations for the payment of principal of and
interest on the Securities to maturity.
DEFAULTS AND REMEDIES. An Event of Default includes: default
for 30 days in payment of interest on the Securities; default in payment of
principal on the Securities; default by the Company in the performance of any of
its other agreements applicable to the Securities
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that continues for 60 days after the Company has been given notice of such
default; a failure to pay when due at maturity or a default that results in the
acceleration of maturity of any other debt of the Company or certain
subsidiaries in an aggregate amount of $40 million or more; and certain events
of bankruptcy or insolvency. If an Event of Default occurs and is continuing,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing default (except a default in
payment of principal or interest) if it in good faith determines that
withholding such notice is in their best interest.
TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with those
persons, as if it were not Trustee.
NO RECOURSE AGAINST OTHERS. Any incorporator, director or
officer, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
AUTHENTICATION. This Security shall not be valid until
authenticated by a manual signature of the Trustee.
ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (=custodian), U/G/M/A (=Uniform Gifts to
Minors Act), and U/T/M/A (=Uniform Transfers to Minors Act).
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and the Officer's Certificate, which
contains the text of this Security. Requests may be made to: Corporate
Secretary, MGIC Investment Corporation, MGIC Plaza, 250 East Kilbourn Avenue,
Milwaukee, Wisconsin 53202.
All terms used in this Security, which are defined in the
Indenture, shall have the meanings assigned to them in the Indenture.
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[Form of Assignment Form]
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to ----------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. no.)
and irrevocably appoint as agent to transfer this -------------------------
Security on the books of the Company. The agent may substitute another to act
for him.
Date: Your signature:
-------------------------- ------------------------
(Sign exactly as your name appears on the face of this Security)
Signature Guaranteed:
- --------------------------------------
* * *
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IN WITNESS WHEREOF, we have set our hands and the corporate
seal of the Company as of the day and year first above written.
MGIC INVESTMENT CORPORATION
By: /s/ Patrick Sinks
------------------------------------
Patrick Sinks
Senior Vice President,
Controller and Chief Accounting Officer
[CORPORATE SEAL] By: /s/ James Karpowicz
------------------------------------
James Karpowicz
Vice President and Treasurer
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