EXHIBIT 4.13
FIRST SUPPLEMENTAL INDENTURE
(Subordinated Debt Securities)
FIRST SUPPLEMENTAL INDENTURE, dated as of June 20, 1997 (the "First
Supplemental Indenture"), to the Indenture, dated as of February 19, 1997 (the
"Indenture"), between UNITED COMPANIES FINANCIAL CORPORATION, a Louisiana
corporation (hereinafter called the "Company"), having its principal executive
office at 0000 Xxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000, and THE BANK OF NEW
YORK, a New York banking corporation (hereinafter called the "Trustee"), having
its principal corporate trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Debt Securities") to be issued in one or more series, as in the Indenture
provided;
WHEREAS, the Company desires and has requested the Trustee to join it in
the execution and delivery of this First Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 8 3/8% Subordinated Notes due July 1, 2005 in the
aggregate principal amount of $150,000,000, a specimen copy of which is attached
hereto as Exhibit A (the "Notes"), on the terms set forth herein;
WHEREAS, Section 11.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Debt Securities to, inter alia, establish the terms of any
Debt Securities as permitted by Sections 2.01 and 3.01 of the Indenture,
provided certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company and the Trustee, in accordance with its terms,
and a valid amendment of, and supplement to, the Indenture have been done;
NOW THEREFORE:
There is hereby established a series (as that term is used in Section 3.01
of the Indenture) of Debt Securities to be issued under the Indenture, which
series of Debt Securities shall have the terms set forth herein and in the
Notes, and in consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof, the Company mutually covenants and agrees with
the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
ARTICLE ONE
SCOPE OF THIS FIRST
SUPPLEMENTAL INDENTURE
Section 1.1. CHANGES, ETC. APPLICABLE ONLY TO THE NOTES. The changes,
modifications and supplements to the Indenture effected by this First
Supplemental Indenture in Sections 2.1 through 2.6 hereof shall be applicable
only with respect to, and govern the terms of, the Notes, which shall be limited
in aggregate principal amount to $150,000,000, except as provided in Section
3.01(2) of the Indenture, and shall not apply to any other Debt Securities which
may be issued under the Indenture unless a supplemental indenture with respect
to such other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.1. AMENDMENTS TO SECTION 1.01. Section 1.01 of the Indenture is
hereby amended by adding the following definitions in their proper alphabetical
order:
"Consolidated Fixed Charge Coverage Ratio" of the Company means, for the
twelve-month period ended as of the last day of the most recent fiscal quarter,
the ratio of (a) the sum of consolidated net income, consolidated interest
expense and consolidated income tax expense deducted in computing consolidated
net income (loss), in each case for such period, of the Company and its
consolidated Subsidiaries on a consolidated basis, to (b) the sum of
consolidated interest expense of the Company for such period and cash dividends
paid on any preferred stock of the Company during such period, all determined in
accordance with generally accepted accounting principles.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors in
interest.
"Notes" means $150,000,000 aggregate principal amount of the Company's 8
3/8% Subordinated Notes due July 1, 2005.
"Rating Agencies" means Moody's and S&P.
"S&P" means Standard & Poor's Ratings Group, a division of The XxXxxx-Xxxx
Companies, Inc., and its successors in interest.
"Senior Indenture" means the indenture dated as of October 1, 1994 between
the Company and The First National Bank of Chicago, as Trustee.
"Senior Notes" means the 7.70% Senior Notes due January 15, 2004, the 9.35%
Senior Notes due November 1, 1999 and the 7% Senior Notes due July 15, 1998, all
of which were issued pursuant to the Senior Indenture.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the
outstanding voting stock (other than directors' qualifying shares) is at the
time owned, directly or indirectly, by the Company or by one or more
Wholly-Owned Subsidiaries of the Company or by the Company and one or more
Wholly-Owned Subsidiaries of the Company.
Section 2.2. AMENDMENT TO ARTICLE TEN. Article Ten of the Indenture is
hereby amended by deleting the words "Intentionally Omitted" and inserting
instead "Consolidation, Merger, Conveyance, Transfer or Lease" and adding the
following Sections 10.01 and 10.02:
"Section 10.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease all or substantially all of its assets as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, all or substantially all of the assets of the Company as an entirety
(the "successor corporation") shall be a corporation organized and existing
under the laws of the United States or any State or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Notes and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
For purposes of this Section 10.01, assets of the Company which did not
account for at least 50% of the consolidated net income of the Company for its
most recent fiscal year ending prior to the consummation of such transactions
shall not in any event be deemed to be all or substantially all of the assets of
the Company.
Section 10.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of all or substantially all of the assets of the
Company as an entirety in accordance with Section 10.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture, as supplemented, with the same effect as if such successor
corporation had been named as the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture, as supplemented, and the Notes."
Section 2.3. AMENDMENT TO SECTION 12.07. The current Section 12.07 of the
Indenture is hereby renumbered to become Section 12.10 of the Indenture and the
following new Section 12.07 is hereby inserted immediately following Section
12.06:
"Section 12.07. LIMITATION UPON MORTGAGES AND LIENS.
The Company will not at any time directly or indirectly create or assume,
otherwise than in favor of the Company or a Wholly-Owned Subsidiary, any
mortgage, pledge or other lien or encumbrance upon any stock of any Subsidiary
directly owned by the Company, any indebtedness of any Subsidiary to the Company
or any other property of the Company or any interest it may have therein,
whether now owned or hereafter acquired, without making effective provision (and
the Company covenants that in such case it will make or cause to be made,
effective provision) whereby the Notes shall be secured by such mortgage,
pledge, lien or encumbrance equally and ratably with any and all other
obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured PROVIDED, HOWEVER, that the
foregoing covenant shall not be applicable to the following:
(a) (i) any mortgage, pledge or other lien or encumbrance on any such asset
hereafter acquired or constructed by the Company, or on which property so
constructed is located, and created prior to, contemporaneously with or within
180 days after, such acquisition or construction, or the commencement of
commercial operation, of such asset to secure or provide for the payment of any
part of the purchase or construction price of such asset, or (ii) the
acquisition by the Company of such asset subject to any mortgage, pledge, or
other lien or encumbrance upon such asset existing at the time of acquisition
thereof, whether or not assumed by the Company; PROVIDED that, in the case of
clauses (i) and (ii) of this Section 12.07(a), the lien of any such mortgage,
pledge or other lien does not spread to an asset owned by the Company prior to
such acquisition or construction or to another asset thereafter acquired or
constructed other than fixed improvements on such acquired or constructed
property;
(b) any mortgage, pledge or other lien or encumbrance created for the sole
purpose of extending, renewing or refunding any mortgage, pledge, lien or
encumbrance permitted by subsection (a) of this Section 12.07; PROVIDED,
HOWEVER, that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness so secured at the time of such
extension, renewal or refunding and that such extension, renewal or refunding
mortgage, pledge, lien or encumbrance shall be limited to all or any part of the
same asset that secured the mortgage, pledge or other lien or encumbrance
extended, renewed or refunded, or to another asset of the Company not subject to
the limitations of this Section 12.07;
(c) liens for taxes or assessments or governmental charges or levies not
then due and delinquent or the validity of which is being contested in good
faith, and against which an adequate reserve has been established; liens on any
such asset created in connection with pledges or deposits to secure public or
statutory obligations or to secure performance in connection with bids or
contracts; materialmen's, mechanics', carrier's, workmen's, repairmen's or other
like liens; or liens on any such asset created in connection with deposits to
obtain the release of such liens; liens on any such asset created in connection
with deposits to secure surety, stay, appeal or customs bonds; liens created by
or resulting from any litigation or legal proceeding which is currently being
contested in good faith by appropriate proceedings; leases and liens, rights of
reverter and other possessory rights of the lessor thereunder; zoning
restrictions, easements, rights-of-way or other restrictions on the use of real
property or minor irregularities in the title thereto; and any other liens and
encumbrances similar to those described in this subsection, the existence of
which does not, in the opinion of the Company, materially impair the use by the
Company of the affected asset in the operation of the business of the Company,
or the value of such asset for the purposes of such business;
(d) any mortgage, pledge or other lien or encumbrance created after the
date of this Indenture on any asset leased to or purchased by the Company after
that date and securing, directly or indirectly, obligations issued by a State, a
territory or a possession of the United States, or any political subdivision of
any of the foregoing, or the District of Columbia, to finance the cost of
acquisition or cost of construction of such asset, provided that the interest
paid on such obligations is entitled to be excluded from gross income of the
recipient pursuant to Section 103(a)(1) of the Code (or any successor to such
provision) as in effect at the time of the issuance of such obligations;
(e) any mortgage, pledge or other lien or encumbrance on any asset now
owned or hereafter acquired or constructed by the Company, or on which an asset
so owned, acquired or constructed is located, to secure or provide for the
payment of any part of the construction price or cost of improvements of such
asset, and created prior to, contemporaneously with or within 180 days after,
such construction or improvement; and
(f) any mortgage, pledge or other lien or encumbrance not otherwise
permitted under this Section 12.07; PROVIDED, the aggregate amount of
indebtedness outstanding at any time secured by all such mortgages, pledges,
liens or encumbrances does not exceed the greater of $25,000,000 or 10% of the
consolidated stockholders' equity of the Company."
Section 2.4. AMENDMENT TO ARTICLE TWELVE. Article Twelve of the Indenture
is hereby amended by inserting the following new Sections 12.08 and 12.09
immediately following Section 12.07:
"Section 12.08. MAINTENANCE OF NET WORTH.
The consolidated stockholders' equity of the Company at the end of any
fiscal quarter shall not be less than $100,000,000 (without giving effect to any
adjustment to consolidated stockholders' equity for such fiscal quarter pursuant
to Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 115); PROVIDED that if the foregoing covenant is not satisfied for
a fiscal quarter as a result, in whole or in part, of a change in generally
accepted accounting principles which was implemented by the Company during such
fiscal quarter, the Company shall not be in default of the foregoing covenant
unless and until such covenant is not satisfied as of the last day of the fourth
fiscal quarter following the fiscal quarter in which the change in generally
accepted accounting principles was implemented by the Company; and PROVIDED
FURTHER that this Section 12.08 shall cease to be effective from and after the
first date on which either (a) the Senior Notes are rated BBB- or higher by S&P
and Baa3 or higher by Moody's or (b) no Senior Notes are outstanding (or if
outstanding, such series of Senior Notes shall have been defeased in accordance
with the terms of the Senior Indenture) and the Notes are rated BBB- or higher
by S&P and Baa3 or higher by Moody's or such other comparable ratings as such
Rating Agencies shall designate at any time in the future.
Section 12.09. MAINTENANCE OF A CONSOLIDATED FIXED CHARGE COVERAGE RATIO.
The Company shall maintain a Consolidated Fixed Charge Coverage Ratio for
the Company of at least 1.75:1.0; PROVIDED that if the foregoing covenant is not
satisfied for a period as a result, in whole or in part, of a change in
generally accepted accounting principles which was implemented by the Company
during the last fiscal quarter of such period, the Company shall not be in
default of the foregoing covenant unless and until such covenant is not
satisfied at the end of the twelve-month period ended as of the last day of the
fourth fiscal quarter following the fiscal quarter in which the change in
generally accepted accounting principles was implemented by the Company; and
provided further that this Section 12.09 shall cease to be effective from and
after the first date on which either (a) the Senior Notes are rated BBB- or
higher by S&P and Baa3 or higher by Moody's or (b) no Senior Notes are
outstanding (or if outstanding, such series of Senior Notes shall have been
defeased in accordance with the terms of the Senior Indenture) and the Notes are
rated BBB- or higher by S&P and Baa3 or higher by Moody's or such other
comparable ratings as such Rating Agencies shall designate at any time in the
future."
Section 2.5. RANKING. The Notes will be general unsecured obligations of
the Company, and will be subordinated in right of payment to the prior payment
in full of all existing and future Senior Indebtedness of the Company as set
forth in Article Sixteen of the Indenture.
Section 2.6. TERMS OF THE NOTES. In accordance with Section 3.01 of the
Indenture, the Notes are subject to the terms set forth in this First
Supplemental Indenture including without limitation Exhibit A hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this First
Supplemental Indenture and Exhibit A hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the Company's legal
defeasance option and covenant defeasance option pursuant to Section 15.02 2
of the Indenture. For purposes of Section 15.02 of the Indenture, the
restrictive covenants referred to therein shall include the covenants set forth
in Article Two of this First Supplemental Indenture.
ARTICLE THREE
MISCELLANEOUS
Section 3.1. DEFINED TERMS. Unless otherwise provided in this First
Supplemental Indenture, all defined terms used in this First Supplemental
Indenture shall have the meanings assigned to them in the Indenture.
Section 3.2. CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE
ACT OF 1939. If and to the extent that any provision of this First Supplemental
Indenture limits, qualifies or conflicts with another provision included in this
First Supplemental Indenture or in the Indenture which is required to be
included herein or therein by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, as amended, such required provision shall control.
SECTION 3.3. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES
SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 3.4. COUNTERPARTS. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 3.5. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Section 3.6. SEVERABILITY OF PROVISIONS. In case any provision in this
First Supplemental Indenture or in the Notes 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 3.7. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
First Supplemental Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their respective successors
and assigns, whether so expressed or not.
Section 3.8. BENEFIT OF SUPPLEMENTAL INDENTURE. Nothing in this First
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent and their
successors hereunder, and the Holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under this First Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
UNITED COMPANIES FINANCIAL
CORPORATION
By:/s/Xxxxx X. Xxxxxx
Name:Xxxxx X. Xxxxxx
Title: Senior Vice President & Treasurer
THE BANK OF NEW YORK,
as Trustee
By:/s/ Xxxxxxx X. Xxxx
Name:Xxxxxxx X. Xxxx
Title:Assistant Treasurer
EXHIBIT A
[FORM OF FACE OF NOTE]
UNITED COMPANIES FINANCIAL CORPORATION
8 3/8% Subordinated Notes due July 1, 2005
REGISTERED REGISTERED
No. R-1
CUSIP 000000XX0
If this Note is registered in the name of The Depository
Trust Company (the "Depositary") (55 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx) or its nominee, this Note may not be transferred
except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary, unless and until
this Note is exchanged in whole or in part for Notes in
definitive form. Unless this certificate is presented by an
authorized representative of the Depositary to the Company
or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary (and any payment
is made to Cede & Co. or to such other entity as is
requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co. has an interest
herein.
UNITED COMPANIES FINANCIAL CORPORATION, a corporation duly organized and
validly existing under the laws of the State of Louisiana (herein called the
"Company", which term includes any successor corporation under the Indenture, as
defined on the reverse side hereof), for value received hereby promises to pay
to CEDE & CO., or registered assigns, the principal sum of $150,000,000 (ONE
HUNDRED FIFTY MILLION DOLLARS) on July 1, 2005 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on
January 1 and July 1 of each year, commencing January 1, 1998, on said principal
sum in like coin or currency, at the rate per annum specified in the title of
this Note, from the January 1 or July 1, as the case may be, next preceding the
date of this Note to which interest has been paid or duly provided for, unless
the date hereof is a date to which interest has been paid or duly provided for,
in which case from the date of this Note, or unless no interest has been paid or
duly provided for on the Notes, in which case from June 20, 1997, until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any December 15 or June 15, as the case
may be, and before the following January 1 or July 1, this Note shall bear
interest from such January 1 or July 1. The interest so payable on January 1 or
July 1 will be paid to the Person in whose name this Note is registered at the
close of business on the Regular Record Date, which shall be December 15 or June
15 (whether or not a Business Day) next preceding such January 1 or July 1,
provided that any such interest not punctually paid or duly provided for shall
be payable as provided in the Indenture. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
Payment of the principal of, and premium, if any, on, this Note will be
made in immediately available funds upon surrender of the Notes at the Corporate
Trust Office of the Trustee. Interest will be paid by check mailed to the
address of the Person entitled thereto as it appears in the Security Register on
the applicable Regular Record Date or, at the option of the Company, by wire
transfer to an account maintained by such Person with a bank located in the
United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to herein by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: June 20, 1997
UNITED COMPANIES FINANCIAL
CORPORATION
By:
----------------------------------
Title:
Attest
By:
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Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the series of Debt
Securities issued under the
within mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By:
------------------------------
Title:
[REVERSE SIDE OF NOTE]
UNITED COMPANIES FINANCIAL CORPORATION
8 3/8% Subordinated Notes Due July 1, 2005
This Note is one of a duly authorized issue of Debt Securities of the
Company designated as its 8 3/8% Subordinated Notes due July 1, 2005 (herein
called the "Notes"), limited in aggregate principal amount to $150,000,000,
issued and to be issued under an Indenture dated as of February 19, 1997, as
amended and supplemented by the First Supplemental Indenture dated as of June
20, 1997 (herein called the "Indenture"), between the Company and The Bank of
New York, as trustee (herein called the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture reference is hereby
made for a statement of the respective rights of the Company, the Trustee and
the Holders of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register
relating to the Notes, upon surrender of this Note for registration of transfer
at the office or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount with like terms and conditions, will be issued to the
designated transferee.
The Notes are issuable only as registered Notes without Coupons in the
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested by the Holder
surrendering the same.
Except as otherwise provided in the Indenture, no service charge will be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this Note is registered as the owner hereof for the purpose
of receiving payment as herein provided and for all other purposes, whether or
not this Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
If an Event of Default shall occur with respect to the Notes, the principal
of all the Notes, plus accrued and unpaid interest, may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the written consent of the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of each series affected by such
supplemental indenture, voting separately, to enter into supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of modifying in any manner
the rights of the Holders under the Indenture of such Debt Securities, or
Coupons, if any; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby, (i) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the principal
amount thereof, or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any payment to
be made regarding any Coupon, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund, or impair the right to institute suit
for the enforcement of any payment on or after the Stated Maturity thereof, (ii)
reduce the percentage in principal amount of Outstanding Debt Securities of any
series, the Holders of which are required to consent to any such supplemental
indenture, or (iii) modify any of the subordination provisions set forth in the
Indenture in a manner adverse to the Holders. The Indenture also contains
provisions permitting the Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series, on behalf of the
Holders of all the Debt Securities of any such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
or Events of Default under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
No supplemental indenture shall adversely affect the rights of any holder of
Senior Indebtedness without the consent of such holder.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or any part thereof, or of indebtedness represented
hereby, or upon any obligation, covenant or agreement of the Indenture or any
indenture supplemental thereto, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company or any predecessor or successor corporation, either directly or
indirectly through the Company, or any such predecessor or successor corporation
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 agreed
and understood that the Indenture or any indenture supplemental thereto and this
Note are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any such incorporator, stockholder, officer
or director, past, present or future, of the Company or any predecessor or
successor corporation, either directly or indirectly through the Company or any
such predecessor or successor corporation, because of the indebtedness
authorized under the Indenture or under or by reason of any of the obligations,
covenants, promises or agreements contained in the Indenture or in this Note or
to be implied therefrom or herefrom; and that any such personal liability, by
the acceptance hereof and as part of the consideration for the issue hereof, is
expressly waived and released.
All terms used in this Note which are defined in this Note shall have the
meanings assigned to them in the Indenture.
The following abbreviations, when used in the inscription on the face of
the within Note, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entirety
JT TEN -- as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT
MIN ACT -- Custodian
------------------------------
(Cust)
-----------------------------
(Minor)
under Uniform Gifts to Minors Act
------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee, including zip code)
the within Note, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
